APPEAL from a judgment of the Superior Court of the County of Yavapai. C. C. Faires, Judge. Judgment affirmed.
Messrs. Byrne & McDaniel, and Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellant.
Messrs. O'Sullivan & Morgan, and Mr. Leo T. Stack. for Appellees.
[59 Ariz. 290] LOCKWOOD, C.J.
J. R. Atkins and Christine Atkins, his wife, plaintiffs, brought suit to condemn a strip of land belonging to Cienega Cattle Company, a corporation, defendant, as a passageway for plaintiff's cattle. The case was tried to the court without a jury, and judgment rendered in favor of plaintiffs, whereupon this appeal was taken.
The facts may be stated as follows: Plaintiffs had homesteaded section 34, township 20 north, range 5 west, G. & S.R.B. & M., while defendant was the owner of the adjoining south half of the southeast quarter of section 33. A National Forest area of considerable size lay to the south and west of section 34.Alternate sections of this forest area were owned by defendant, and it had fenced its land in section 33 and section 3 of township 19 north, range 5 west, lying immediately south of section 34, in such a manner that the cattle owned by plaintiffs, and located on section 34, could not pass into the National Forest and onto the alternate sections thereof which were owned by the government.
Defendant for many years had had a permit from the national government entitling it to range a certain number of cattle on the government sections above described. Plaintiff Atkins had for many years been a cattleman, and was desirous of establishing a cattle outfit, with headquarters on his homestead. The land in the homestead was entirely inadequate to maintain sufficient cattle to constitute a reasonable independent outfit, it being considered under the conditions obtaining [59 Ariz. 291] in the district in question that a section of land cannot adequately carry more than fifteen to twenty head of cattle, and that a minimum of approximately two hundred head of cattle is required to properly
support a single family. The ownership and possession of the land in the district was such that the only place where plaintiff Atkins could reasonably secure grazing rights sufficient to maintain a minimum herd, as above described, was on the National Forest, and he made application to the proper authorities for a grazing permit thereon, using his homestead as headquarters from which his cattle would be expected to range back and forth upon the forest area. The forest authorities approved of his intention to establish himself as an independent cattle raiser and gave him to understand that they would issue him a permit if, as, and when he could secure an adequate means of access from his homestead to the forest area. The only practical way for him to do this was by securing a right of way through defendant's land, whereby his cattle might pass from the homestead to the forest area. This, of course, was refused. Plaintiffs then brought suit under the provisions of section 1332, Revised Code 1928, to condemn a private way of necessity through the southeast corner of section 33, for the purpose of allowing their cattle to pass back and forth as above set forth. The trial court denied the relief sought, on the ground that it did not then appear that plaintiffs had secured any definite right to graze their cattle upon the National Forest, and that under such circumstances they could not condemn a private right of way. The matter came before us on appeal, and the judgment of the lower court was affirmed. Atkins v. Hooker, 56 Ariz. 197, 106 P.2d 485. Thereafter plaintiffs secured from the federal authorities a grazing permit for thirty head of cattle, with a tentative promise that [59 Ariz. 292] as their herd expanded the permit would be enlarged, and the present action was brought.
There are several questions for our consideration on the appeal, and we take them up in their logical order. The first is whether a right of condemnation exists under the circumstances stated for the purpose for which it is requested by plaintiffs. It has been very generally held that in the absence of constitutional authority private property may not be taken for private purposes under the power of eminent domain, but it is also almost universally held that this power is an inherent right which pertains to sovereignty as a necessary and inextinguishable attribute, and that the people, acting through their Constitution, may provide that private property may be taken for private use upon due notice and hearing, and the payment of adequate compensation. State v. Superior Court, 77 Wash. 585, 137 P. 994. Such a clause in a state Constitution does not violate any of the provisions of the Federal Constitution. Head v. Amoskeag Mfg. Co., 113 U.S. 9, 5 S.Ct. 441, 28 L.Ed. 889.
Section 17, article 2, of the Constitution of Arizona reads, so far as material, as follows:
"(Eminent domain.) -- Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches, on or across the lands of others for mining, agricultural, domestic, or sanitary purposes...."
This is a clear recognition that private property may be taken for private ways of necessity. It was obviously copied from the Constitution of the state of Washington. Bugbee v. Superior Court,34 Ariz. 38, 267 P. 420, and decisions from that state are, therefore, quite persuasive in construing the section. An attempt was made in this state by a mining corporation to condemn a private way of necessity across the property of another corporation for the purpose of [59 Ariz. 293] developing certain mining claims, and we held, in I ...