The Glenwood post., 1915-06-12
.klE Court
MAKES Enslo)k
(CostiA.sl ksoa fiaue pAasI

decision the only claim that the owners
Of the land can have for damages will
be through proving that the owners Il
the ditch above them were negligent in
the construction or operation. of the
bitches.
Justice Scott and Justice Teller dis
sent. from the opinion, and Justice
Scott filed dissenting opinion sup
porting his contention on that section
of the constitution which reads, THAT
private property shall not be taken u
damaged for public or private use,
without just compensation.
The Scott dissent says:
Section 10, Article 2 of the constitu-
tiOn provides: THAT private property
shall not be taken or damaged for pub
lie or private use without just COM
pensation.
The statement in the majority opin-
ion, that "This provision refers, and is
limited to proceedings in eminent do
main, or to cases where injury results
by reason of the taking of property in
which the abutting owner has an in
terest," regard as the vital and fun
damental error in the opinion.
This announcement plainly places an
arbitrary limitation upon one Of the
provisions of the Bill of Rights. 1t
finds no support in sound reason or
justice.
1t is true that the question has arisen
in the suggested class of cases general
ly, but the provision of the constitu-
tion is general in its terms, and if tie
charter of our liberties. is to be pre-
served, it must be held to be universal
in its application.
In this case the natural result of the
construction of the ditch, upon ada
cent and higher lands, and the flow OF
water through 1t, was to so damage the
plaintiffs 8 lands as to result in their
complete destruction, and to likewise
destroy the use of his domicile.
1t is fundamental in the law that
wherever there is a right there il n
remedy. This maxim is especially ap
plicable where there is a constitutional
guaranty of that right.
If the ditch company had constructed
the ditch across PLAINTIFF lands, thea
the latter could recover in full for the
damage, is the view Of the majority Of
the court. But because the ditch CON-
pany elected to construct the ditch just
above his lands, an action and pro
ceeding in which the plaintiff could
have no voice, then the ditch company,
and Is a natural and direct result of
such location, may destroy the plain
tih's lands with impunity. This con-
clusion is, to my mind, absurd and un-
reasonable, and in plain violation of
the constitutional guarantee.
1t is also in violation of section of
cur Bill of Rights, which provides
THAT all persons have certain natural.
essential and inalienable rights, among
which may be reckoned the right Of
enjoying and defending their lives and
liberties; that of acquiring, possessing
and protecting property; and of seek
ing and obtaining their safety and
happiness.
1t is likewise in violation of section
8 of the Bill of Rights; providing that.
'The courts Of justice shall be open,
and speedy remedy afforded for every
injury to person, property or charac-
ter" in that the opinion closes tbs
doors of justice to the plaintiff, and
denies him any remedy for a palpable
injury to his property, the unquestion-
ed result of the plaintiffs acts pur-
posely done for its specific benefit, and
for the public benefit.
1t will not do to say the plaintiff is
relieved because the taking Of the lands
Of the adjoining proprietor was in =
lawful way. 1t can make no difference
how one acquires property, or the use
of it, whether by purchase or condem-
nation, he cannot thereby or thereafter
lawfully damage or destroy .he prop
erty of his neighbor, by his own wilful
act, lawful or unlawful in itself, with
out compensation.
This protection is the very spirit of
the law of eminent domain, and to say
that the citizen has no protection when
the Law of eminent domain cannot ap-
ply, is preposterous.
To my mind the principle announced
is in clear violation Of the 14th amend
ment Of the constitution Of the United