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Show , DITCHES NOT PRIVATE 1 ! Rfian Can Run Water Through ') Anether Man's Property. I j ' VERY IGSPQRTANT DECISION ! Lower Court Uphold by the Mi' Supremo Court. I I ' Importanco of Irrigation and tho 1 j j Peculiarities of "Water Laws I j Pointed Out 1j An opinion handed down In the Su-, Su-, premc court yesterday In the case of , E, J. Nast vs. Lee Clark ct nl., appcl-( appcl-( lants, afllrmB tho decision of the trial cpurt. The action Is one wherein the plaintiff sought to condemn a rlght-of-iay In a ditch owned by the defend-i defend-i ants. The complaint alleGed that the ' plaintiff was the owner of eighty acrea J of land situated In Utah county, which I land without Irrigation la arid, barren j and unproductive, but with Irrigation i -would produce in abundance; that the , defendants own a tract of land north of I the plaintiffs and that they bring water I in a ditch from Fort Canyon creek to their prcmiccs. The plaintiff claimed to own water In Fort Canyon creek and ! that the only practicable way in which to get It to his land was through defendant's de-fendant's ditch. Tho plaintiff asked that he be permitted to enlarge the ditch and have a perpetual right-of-way throush tho same, saying the land 1 would be put to a public ue. The court entered' judgment and de-- de-- creo In favor of the plaintiff, whereupon where-upon the defendants appealed to the Supreme court, on the ground that the use sought to be made of the property j sought to be condemned Is strictly prl-1 prl-1 a ate, and in no sense- a public use. I THE QUESTION AT ISSUE. ' The opinion holds that the only ques-I ques-I tlon presented by the appeal is; ""Was the condemnation of appellants' land ' in this case, in law and In fact, for a public use?" The opinion then goes on to say: "There is no fixed rule of law i by which this question can be determined. de-termined. In other words, what la a ( public use cannot always be determined de-termined by the application of purely legal principles. This Is evident from the fact that there are two lines of au-t au-t thoritles, neither of which attempts to 1 lay down any flxed rule as a guide to he followed In all cases. One class of I authorities, in a general way. hold that by public use is meant a use by the public, pub-lic, or Its agencies, that Is, the public must have the right to the actual use In some way of the property appropriated; appropri-ated; whereas the other line of decisions hold that It Is a public use within tho meaning of the law when the taking Is for a use that will promote the public i interest, and which use tends to develop i the great natural resources of the com-i com-i momvealth. After a careful examlna-I examlna-I tlon of the leading cases on this subject we are of the opinion that the class of opinions last mentioned are more In ' harmony with enlightened public policy and the liberal Interpretation given the term public use, which the Legislature j has, In effect, declared shall be- fol-I fol-I lowed in this State, Is far more conducive con-ducive to individual and public advance-' advance-' mcnt than the restricted construction I adopted and followed by the line of de-j de-j cisions first referred to. ( WATER QUESTION VITAL. I "The question of the manner pf ap-i ap-i propriation and use of water for domestic, domes-tic, Irrigation, mining and manufacturing manufactur-ing purposes is, ond over since the advent ad-vent of the early pioneers, haa been, the most Important and vital of all industrial indus-trial question with which the people within thfa arid region havo been confronted. con-fronted. Their requirements, and we Im ' I migm aau, ineir aosoiuie necessities, i lli impelled the Legislatures and courts at 1 t'l nn early date In the history of the States M,Jl and Territories- strictly arid In charac- ! Ur tcr to depart from lQy aside as lm- I y i' practicable, some legal doctrines and J i) rules relating to the control and use of HjJv water which had theretofore been ad- 15.' .. hercd to and followed for agca. and to 1 adopt and put In operation a new sys- l ei ' tern of acquiring title In and to the I vp streams which are within the arid belt, j ji the uso of which was found to be Indls- ! Jr1 pc-nsablo in agricultural pursuits, in ml- 1 1 A ning, in the establishment of industries, ' and in the general development of the 1 ( arid States and Territories." Slf THE CONCULSIONS REACHED. ?( The opinion goes on to state that the id' question of how to Increase the water j q't, supply in the arid region has grown in J viv; magnitude and Importance until it has become national as well aa local, and ' i ; that Congress granted to this State 500,- , j 000 acres of the public lands with which ?lf , to create a fund to be used for the pur- .y poso of building reservoirs, and that In Ai tj the act known as the Irrigation Elll jl ( created a fund, which Is swelling Into fA the millions of dollars, for the purpose Aj't of aiding in this most important of all . gr' enterprises of a public character in the fi t, West. J I I A large number of decisions are 1 i quoted in support of the points made, J c and the judgment of the lower court Is LuJ affirmed, with the costs taxed to the ap- f Jv' pel lants. Jl,.1 Tho opinion la written by Justice Mc- J t j Carty and concurred in by Justice h:J Eartch. Chief Justice Baskln dissents, n ,j |