cision of a cause, or of some motion or other proceeding therein, and, therefore, if a cause has finally terminated, reflections upon the members of the court in respect to it, though libelous, are not punishable as contempts. It has also been held that, though a cause is still pending, a publication concerning it and the probable action of the court cannot be treated as a contempt, if such publication, though attributing to the court motives which ought not to affect its action, nevertheless was not of a character designed to affect such action. Thus, a newspaper, in publishing what purported to be an interview with a resident of Montana respecting a cause pending in one of the counties of that state, and involving a very large sum of money, stated it to be his opinion that all the people of the county were prejudiced respecting the cause, and that the judge had been elected because his views were known and were believed to be unchangeable, and that neither a judge nor a jury could be found in the county to give the cause a fair trial. This publication was held not to constitute a contempt, for the reason that there was nothing therein tending to prejudice anyone respecting either of the litigants or the merits of their cause, and that attributing to the judge or to the people of the county bias and prejudice could not make them more biased or prejudiced, and, therefore, could not have been intended to affect any decision of the controversy: In re MacKnight, 11 Mont. 126; 28 Am. St. Rep. 451.

Reflections upon the judge personally, however libelous, are not contempts of court, if they do not refer to the discharge of the functions of his office, and are not of a character to embarrass or unduly influence the decision of a cause: Neel v. State, 9 Ark. 263; 50 Am. Dec. 209; Ex parte Hickey, 4 Smedes & M. 751.

The publication complained of may be inserted in a newspaper without the previous knowledge of the publisher. Proof of this fact does not establish that he has not been guilty of a contempt of court, but is always admissible to mitigate his punishment: People v. Wilson, 64 Ill. 195; 16 Am. Rep. 528.

If the publication consists of a report of proceedings alleged to have taken place in court, the accused should be permitted to offer evidence tending to prove that his report was correct, if the prosecution is under a statute making it a contempt of court to publish a false or grossly inaccurate report of ju licial proceedings: In re Robinson, 117 N. C. 533. If the publication is of an ambiguous character, and may or may not have been intended to be a reflection on the court in the discharge of its duties, and it is fairly susceptible of an innocent meaning, the answer of the accused, disclaiming that he intended any imputation upon the court, or any embarrassment of the administration of justice, has, in some cases, been treated as conclusive in his favor: Fishbeck v. State, 131 Ind. 304; Cheadle v. State, 110 Ind. 301; 59 Am. Rep. 199; Percival v. State, 45 Neb. 741; ante, p. 568. Whatever we may think of the rule itself, there can be no doubt that it has sometimes been so applied as to turn a proceeding for the punishment of contempt into a mere farce, and never more clearly so than in the principal case and in the subsequent one of Rosewater v. State, decided by the same court in March, 1896. The publication in question in each of these cases was headed "Justice without equality. Sentences adjusted to fit men. One party to a crime gets five years' sentence in the penitentiary, while another gets the benefit of a pull." The accused in the principal case denied the writing of these headlines, but admitted the writing of the body of the article, and this clearly was fairly represented by the headlines; while in the Rosewater case, as the accused was the publisher of the paper, he must have been responsible for the headlines as well as for the body of the article. In both cases, the answer of the accused was treated as conclusive. In our judgment, to charge a sentence to be the result of a "pull," is the most serious charge which can be preferred against a judge, and no innocent meaning can possibly be attributed to it. The true rule upon this subject was, we think, thus stated by the supreme court of Illinois: "It need hardly be said that we cannot ac

cept, as a reason for discharging the rule, the disclaimer of the answer of any intentional disrespect or any design to embarrass the adminis tration of justice. The meaning and intent of the respondents must be determined by a fair interpretation of the language they have used. They cannot escape responsibility by claiming that their words did not mean what any reader must have understood them as meaning": People v. Wilson, 64 Ill. 195; 16 Am. Rep. 528. Nor, in our judgment, where the language is ambiguous, is the disclaimer of the accused necessarily conclusive. Evidence of witnesses may be received to show the intent and meaning of the publication, and whether it, in their opinion, referred to the court or judge. "The same rule must be applicable as when the publication is alleged to be libelous. Otherwise, publication, the meaning of which was well known and understood, would not be a contempt, provided it was couched in ambiguous language, and did not so show on its face, if the author denied it to be Buch, or that it did not, or was not intended to, refer to a court, judge, or judicial proceedings": Henry v. Ellis, 49 Iowa, 205.

PAXTON & Hershey IrrigaTING CANAL & LAND CO. V. FARMERS' & MERCHANTS' IRRIGATION & LAND CO.

[45 NEBRASKA, 884.]

CONSTITUTIONAL LAW-TITLES OF STATUTES.-A constitutional provision, that "no bill shall contain more than one subject, and the same shall be clearly expressed in its title," does not prohibit comprehensive titles, but is intended to prevent surreptitious legisla

tion.

CONSTITUTIONAL LAW-TITLE OF STATUTE.-In an act entitled, "An act to provide for water rights and irrigation, and to regulate the right to the use of water for agricultural and inanufacturing purposes," the word “irrigation" is used in its popular sense, and implies the means of conducting water to the land to be supplied. A provision in such act for the acquiring, by irrigating companies, a right of way for canals and ditches, is germane to its title, and within the evident purpose thereof.

EMINENT DOMAIN-CONSTITUTIONAL LAW.-To the legislature, and not to the courts, has been committed the power to determine when the exigencies of the public demand the taking of private property for public use, the limit of judicial interference being the duty to declare void acts clearly violative of the fundamental law of the state.

EMINENT DOMAIN-PUBLIC USE.-There is no arbitrary standard by which to determine whether the purpose to which property is appropriated possesses the elements of public utility. A public use need not be for the benefit of the whole public: it may be for the benefit of the inhabitants of a small or restricted locality, but the use and benefit must be in coinmon, and not to particular individuals.

EMINENT DOMAIN-IRRIGATION.-The use of water for irrigation purposes may become a public use, and it does so become under the the operation of the "Rayner Irrigation Law" of Nebraska, and companies organized and operating under that law have power to acquire a right of way for necessary canals and reservoirs by condemnation.

STATUTES-CONSTRUCTION.-If a word in a statute is evidently an interpolation, having no relation to the body of the act, and without sensible meaning, it should be disregarded.

IRRIGATION-CONSTRUCTION OF STATUTE.-A statute conferring upon irrigation companies power to acquire a right of way for

necessary canals and reservoirs, and providing that "no tract of land shall be crossed by more than one ditch," includes lands owned by corporations.

STATUTES-CONSTRUCTION.-A proviso in a statute which operates to limit the application of the enacting clause, general in its terms, is to be strictly construed, and includes no case not within the letter of the exception.

IRRIGATION-CONSTRUCTION OF STATUTE.-A statute conferring upon an irrigation company power to acquire a right of way for necessary canals and reservoirs, does not, in the absence of express provision, confer upon it the right to connect with the ditches of another company, nor to take water therefrom, without the consent of the latter company.

IRRIGATION-CONSTRUCTION.-A statute conferring upon an irrigation company power to acquire a right of way for necessary canals and reservoirs, and providing that "no tract of land shall be crossed by more than one ditch, canal, or lateral without the written consent and agreement of the owner thereof, if the first ditch, canal, or lateral can be made to answer the purpose for which the second is desired or intended," implies that no tract of land shall, without the consent of the owner, be burdened with two or more ditches for watering the same territory. The question is not, whether the first ditch may be so enlarged or extended as to answer the purpose for wh ch the second was designed, but whether it may, as constructed, be made to supply the lands within the reach of both.

F. T. Ransom and T. F. Gantt, for the appellant.

T. C. Patterson and Grimes & Wilcox, for the appellees.

887 POST, J. This is an appeal from a decree of the district court for Lincoln county dismissing the action of the plaintiff company, whereby it seeks to prevent the appropriation by the 888 defendant of a right of way through its lands for an irrigating canal. In the petition it is, in substance, alleged that the plaintiff company is the owner of ten thousand acres of land, bounded by the North Platte river, in Lincoln county, and also of an irrigating canal known as the "Paxton & Hershey ditch," situated on its said lands and on the lands of other adjoining proprietors; that upon its said land, and nearly parallel with the ditch above mentioned, is an irrigating canal known as the "North Platte Irrigating & Land Company's ditch," and herein referred to as the North Platte ditch," and that in the vicinity of the plaintiff's lands sought to be watered by the defendant's proposed canal is an irrigating canal known as the "Cody & Dillon ditch." The plaintiff, it is alleged, has constructed a large number of laterals from its said canal, which it is proposed by the defendant company to cross, thus necessitating the construction and maintaining of many bridges, flumes, and conduits, and otherwise needlessly harassing it in the use and enjoyment of its said property. The defendant company, which is organized for the purpose of building and maintaining ditches, canals,

aqueducts, and reservoirs for the storage and conveyance of water, and of selling water to consumers for irrigating, power, and other useful purposes, prior to the commencement of this action, entered upon the plaintiff's said land, and located and staked out 8 ditch thereon four and one-half miles in length, and is taking steps to condemn a right of way therefor, but that the three ditches above described afford ample facilities for the irrigation of all of the land sought to be supplied by the defendant company, and that water sufficient to supply the defendant's wants can be furnished from the ditches already constructed, should connection be made therewith, at less expense than by the construction and maintaining of the proposed ditch through the plaintiff's land to the source of supply, the North Platte river. The answer, so far as it is deemed necessary to notice it, consists of an allegation 889 that the defendant is engaged in the construction of an irrigating canal, some twenty miles in length, for the purpose of supplying with water from the North Platte river certain territory not within the reach of either of the canals already constructed, a denial that the plaintiff's canal is capable of supplying the lands which the defendant proposes to water, and an allegation that the water supplied by said canal is barely sufficient for the irrigation of the plaintiff's own land. Accompanying the pleadings is a map showing the location of the proposed ditch, as well as those already completed, and which is essential to a perfect understanding of the question at issue. (See next page.)

The district court, upon entering the decree complained of, submitted the following findings of fact and conclusions of law: "1. The plaintiff is a corporation organized and existing under and by virtue of the laws of this state for the following purposes: To construct, own, operate, and maintain a canal or canals, ditch or ditches, for irrigation purposes, to purchase, acquire, own, sell, and convey all real estate that may be necessary for such purposes, and to acquire, own, sell, and convey real estate in connection with carrying on an irrigating business, and to acquire, own, sell, and convey real estate for other purposes deemed advisable or advantageous to the corporation and its interest, and to cultivate and improve such lands as shall be owned by the corporation; to furnish, sell, or rent water for irrigation of lands which shall be owned by said corporation and within its area and other lands within reach of any canal or canals which shall be owned, operated, or controlled by the corporation owning livestock and raising the same in connection with the land held or controlled by this corporation.