the public for domestic, manufacturing, or industrial purposes is of unquestioned "public utility." The legislatures of Arizona, California,2 and Utah,3 have declared "oil pipe-lines" to be a public use. 256. Lateral and other railroads for transportation of mine products.-The mining interests in certain localities have been deemed sufficiently important to justify statutes enabling a mine-owner to condemn rights of way from his mine to the nearest available thoroughfare, by means of what are termed “lateral "railroads." But the laws authorizing the construction and maintenance of such railroads over the lands of another provide that all persons who may have occasion to do so may utilize them, thus making the use at least quasi public.1 A railroad company organized under a law making it a common carrier of passengers and freight may, of course, condemn land for its road-bed. And the fact that the road terminates at a mine, and is used for transporting the mined product, does not alter the public character of the use." But, in respect to the transportation of mine products, it has been held that a mine-owner can not condemn land for a railroad to be used exclusively for the product of his own mine. Such use is a mere private one, to which the law of eminent domain is inapplicable." 1Laws of 1899, p. 62; Rev. Stats. (1901), § 2445, subd. 8. Code Civ. Proc., § 1238, as amended-Laws of 1891, p. 48. 3 Rev. Stats. (1898), § 3588, as amended-Laws of 1901, p. 19. Randolph on Eminent Domain, § 47; Hays v. Risher, 32 Pac. St. 169, 176; De Camp v. Hibernia R. R. Co., 47 N. J. L. 43, 47; New Cent. C. Co. v. George's Creek C. Co., 37 Md. 537, 559; Phillips v. Watson, 63 Iowa, 28; Brown v. Corey, 43 Pa. St. 495, 503. 5 Contra Costa R. R. v. Moss, 23 Cal. 323; Colorado E. Ry. Co. v. Union Pac. Ry. Co., 41 Fed. 293. Randolph on Eminent Domain, § 47; Stewart's Appeal, 56 Pa. 413; McCandless's Appeal, 70 Pa. 210; Sholl v. German C. Co. 118 Ill. 427. 59 Am. Rep. 379, 10 N. E. 199. 'People v. Pittsburg R. R., 53 Cal. 694. This was the rule announced as to tramways by the supreme court of Colorado, heretofore discussed;1 also by the supreme court of Pennsylvania,2 and the supreme court of West Virginia.3 257. Physical and industrial conditions as affecting the rule of "public utility."-Mr. Randolph, in his work on eminent domain,* says: "The magnitude of the interests involved seems to "have been in some cases the determining factor in upholding the necessity for condemnation. 66 "This seems to account for the distinction drawn by "Chief Justice Shaw between a single mill and a great "mill power-the latter a public use, and the former "not. в "Whatever merit there is in this particular dis"tinction, there is doubtless some, albeit an indefinable "force of principle. One might admit the publicity of "lateral railroads and irrigation works in states con"taining great mineral deposits and vast tracts of arid "land, and deny the necessity of these works in states "where mineral wealth and desert land are so insignifi"cant as to render the public gain by their development "absurdly disproportionate to the private benefit. "There is some force in the suggestion that 'what "'shall be considered a public use may depend some"what on the situation and wants of the community "for the time being.'''' 1 People ex rel. Aspen M. Co. v. District Court, 11 Colo. 147, 17 Pac. 298. Edgewood R. R.'s Appeal, 79 Pa. St. 257. 3 Valley City S. Co. v. Brown, 7 W. Va. 191. Great Falls Mfg. Co. v. Fernald, 47 N. H. 444. 'Murdock v. Stickney, 8 Cush. 113. See Oury v. Goodwin (Ariz.), 26 Pac. 376. This case very ably presents the question as applied to waterways for irrigation purposes, in many of its aspects. The opinion is replete with authorities, and presents the law logically. Scudder v. Trenton Del. Falls Co., 1 N. J. Eq. 694, 729, 23 Am. Dec. 756. This view is upheld by the supreme court of the United States in Fallbrook Irrigation District v. Bradley.1 258. The rule in Nevada, Arizona, Montana, and Georgia. In these states certain private enterprises, such as mining and irrigation, which on account of physical and industrial conditions are of the first importance to the people of the state, are regarded as public utilities, and it is held that the power of eminent domain may be invoked in their aid. The decisions announced by the courts in each of these states will be separately considered. The state of Nevada enacted a law which provided that "The production and reduction or ores are of vital "necessity to the people of this state; are pursuits in "which all are interested, and from which all derive a "benefit; so the mining, milling, smelting, or other "reduction of ores are hereby declared to be for the public use, and the right of eminent domain may be "exercised therefor." 2 We have already noted the provisions of the Nevada constitution on this subject. An action was brought under this statute to condemn a strip of land to enable the Dayton mining company to transport over it the wood, lumber, timbers, and other materials required by it in the conduct of its business of mining. The district court declined to act upon the application on the ground that the statute in question was unconstitutional and void. A writ of mandate was applied for, to compel the district court to act, upon which application the supreme court of the state admitted that private property could 1164 U. S. 112, 159, 17 Sup. Ct. Rep. 56. Stats. 1875, § 111; Comp. Laws (1900), §§ 283-300. not be taken for private use; that the declaration by the legislature was not conclusive upon the courts, and that the sole question to be determined was whether the use was a public one. Upon this the court, speaking through Chief Justice Hawley, said: "The reasons in favor of sustaining the act under "consideration are certainly as strong as any that have "been given in support of the mill-dam or flowage acts, as well as some of the other objects heretofore "mentioned. Mining is the greatest of the industrial 66 pursuits in this state. All other interests are sub"servient to it. Our mountains are almost barren of tim"ber, and our valley lands could never be made profit"able for agricultural purposes, except for the fact of a "home market having been created by the mining "developments in different sections of the state. The mining and milling interests give employment to 66 many men, and the benefits derived from this busi66 ness are distributed as much, and sometimes more, among the laboring classes than with the owners of "the mines and mills. The mines are fixed by the laws "of nature, and are often found in places almost inac"cessible. For the purpose of successfully conducting "and carrying on the business of 'mining, milling, "smelting, or other reduction of ores,' it is necessary "to erect hoisting-works, to build mills, to construct smelting furnaces, to secure ample grounds for dump"ing waste rock and earth; and a road to and from the "mine is always indispensable. The sites necessary for 66 these purposes are oftentimes confined to certain fixed "localities. Now, it so happens, or at least is liable to "happen, that individuals, by securing a title to the "barren lands adjacent to the mines, mills, or works, "have it within their power, by unreasonably refusing "to part with their lands for a just and fair compensa"tion, which capital is always willing to give without "litigation, to greatly embarrass, if not entirely defeat, "the business of mining in such localities. In my opin"ion, the mineral wealth of this state ought not to be "left undeveloped for the want of any quantity of land actually necessary to enable the owner or owners of 66 66 Lindley on M.-30 "mines to conduct and carry on the business of mining. "Nature has denied to this state many of the advan"tages which other states possess, but, by way of com66 pensation to her citizens, has placed at their doors the "richest and most extensive silver deposits ever yet dis"covered. The present prosperity of the state is "entirely due to the mining developments already "made, and the entire people of the state are directly "interested in having the future developments unob"structed by the obstinate action of any individual or "individuals."1 A like doctrine was affirmed by the same court in a later case, where a mine-owner sought to condemn the land of another for the purpose of sinking a shaft thereon.2 The rule thus established was adhered to by the circuit court of appeals for the ninth circuit, holding that a mining company may, under the Nevada statute, condemn for use in reaching its mine an old and partially ruined tunnel in a neighboring claim which is not used by the owners of that claim, there being nothing in the record to show any present intention on the part of such owners to use it for mining purposes.3 The decision in the case of Dayton M. Co. v. Seawell, supra, presents the question of "public use, " as applied to the class of state legislation under consideration, in the most favorable light for the mining industry. In its diction it is a classic; in its logic it is persuasive, considering the local conditions existing in that state. 2259. Arizona.-The supreme court of Arizona, by a parallel line of reasoning, reached the same conclusions as to the validity of the laws of that territory authorizing the condemnation of land for the purpose of 'Dayton M. Co. v. Seawell, 11 Nev. 394, 408. |