but in respect to which Wilbur has never made his final proof, and of which the United States remains the owner, subject to the rights of Wilbur. The bill alleges that the said respective tracts of the United States, of the state of California, and of complainant Maria King Bradley are similarly situated in respect to irrigation facilities, and are equally susceptible of one mode of irrigation, from a common source and by the same system of works. It is therein averred that on the 2d day of July, 1892, an election was held in the defendant irrigation district, at which was submitted to the qualified electors of the district the question whether an assessment of $6,000 should be levied for the purpose of raising money to be applied to the defraying of the expenses of the organization of the district, and for the care, operation, management, repair, and improvement of the property of the district, and the salaries of the officers and employés thereof, which election resulted in the affirmative, and which assessment was afterwards levied, under which, for delinquency, the 40acre tract of the complainant Maria King Bradley was sold. It is averred that, on the 27th of October, 1891, the board of directors of the defendant irrigation district estimated and fixed upon, as the amount of money necessary to be raised for the purpose of constructing the necessary irrigation canals and works, and acquiring the necessary property and rights therefor, and otherwise carrying out the purposes and provisions of the act in question, the sum of $400,000, and that, at an election thereafter called to determine whether bonds in that amount should be issued for those purposes, the vote was favorable to the issue of the bonds, after which, on the 5th day of January, 1892, the board of directors ordered that bonds of the district, negotiable in form, be issued, to the amount of $400,000, which order is still in force, and which will be carried into execution, according to the averments of the bill, as soon as purchasers for the bonds can be secured. It is averred that the complainant Maria King Bradley did not sign or join in the petition for the organization of the defendant irrigation district, and that all proceedings in regard to the issuance of bonds and in regard to the assessment were had and taken against her will and consent; that the legislation under which the proceedings were had and taken is in violation of certain provisions of the constitution of the United States, as well as of the constitution of the state of California; that there is no stream or body of water in existence from which the district can obtain water with which to irrigate the lands within the district, but that the district was organized with the intention and sole object of building a dam to catch rain and flood water in the wet season of the year extending from the month of November to the following May, and to divert such water by means of ditches, flumes, and pipes, and conduct the same to and upon the lands in the district. It is averred that the

contemplated dam and other works are intended to be constructed on private property, none of which has been acquired by the district, and that the whole scheme is entirely experimental, uncertain, and problematical, and that all of the money to be raised by the sale of the bonds so authorized to be issued, and which, when issued, will constitute a lien upon all of the land within the district, may be ex

pended by the district without obtaining any water for the irrigation of the land therein. It is averred that the defendant irrigation district was organized for the purpose of supplying the aforesaid 241.84-acre tract owned by the state of California, and the aforesaid 80-acre tract owned by the United States, with water for irrigation, and that the board of directors of the district, in estimating and determining the amount of bonds necessary to be issued, made such estimate and determination upon the basis that it would be necessary to construct works and acquire water rights sufficient to irrigate all of the lands in the district, including the 80 and 251.84-acre tracts, and that the estimated costs of the works, and that the amount of bonds necessary to be issued, were increased at least $9,000 by reason of those two tracts being included. It is alleged that the actual cash value of the 251.84-acre tract is not less than $7,500, and that the actual cash value of the 80-acre tract is not less than $5,000, and that the actual cash value of all of the land within the district, including the improvements, does not exceed $400,000.

A demurrer interposed by the defendants raises the question of the sufficiency of the bill, which, in turn (the proceedings being regular), depends upon the validity of the legislation under which the proceedings were had. Its invalidity is asserted by the complainants, upon the grounds, among others, that it provides for the taking of private property without due process of law, contrary to the provisions of the fourteenth amendment of the constitution of the United States, and that the use for which such property is thereby authorized to be taken is not a public use. Similar objections to the legislation were urged in some, if not in all, of the cases involving its validity that were determined by the supreme court of California, and were by that court held not well taken. Irrigation Dist. v. Williams, 76 Cal. 360, 18 Pac. 379; Irrigation Dist. v. De Lappe, 79 Cal. 352, 21 Pac. 825; Crall v. Irrigation Dist., 87 Cal. 140, 26 Pac. 797; Board of Directors v. Tregea, 88 Cal. 334, 26 Pac. 237; In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675. While the decisions of that court in those, as well as in all other, cases are justly entitled to great respect, this court is not at liberty to decline to exercise its own independent judgment in determining whether any state legislation violates a provision of the constitution of the United States. Nor can the decision of any state court be conclusively binding upon any federal court in respect to the question whether or not the use on behalf of which the power of the state is sought to be exercised is of such a nature that it can be legally exercised. "Its solution," said the supreme court, in Olcott v. Supervisors, 16 Wall. 678, "must be sought, not in the decisions of any single state tribunal, but in general principles common to all courts. The nature of taxation, what uses are public and what are private, and the extent of unrestricted legislative power, are matters which, like questions of commercial law, no state court can conclusively determine for us." Nor does the legislative declaration found in the act here in question that the use in relation to which the authorized power is to be exercised is a public use, necessarily make it so. Cooley, Const. Lim. (5th Ed.) p. 666, and cases there cited. If it did, the constitutional provision

that private property may be taken for a public use, and the converse of this, which is everywhere maintained by all courts, and which nobody doubts, that private property cannot be taken for a private use, might, as said by counsel for complainants, just as well not exist. It is the purpose and use of a work which determine its character. Olcott v. Supervisors, supra. Streets and highways are in their nature public; for the very purpose of their construction is the accommodation of the public, to the use of which every person is entitled upon the same terms and conditions as every other person. Water appropriated or designed for the use of cities and towns becomes charged with a public use; for the very purpose of such appropriation is the supplying of the public with that necessary eleinent, and every person within such cities and towns is entitled to it upon precisely the same terms and conditions. So, also, in dry and arid regions, like many and great sections of California, where water is their very life blood, is water appropriated or designed for the use of the public for purposes of irrigation. See, in this connection, Osgood v. Mining Co., 56 Cal. 571; my dissenting opinion in Lux v. Haggin, 69 Cal. 442, 10 Pac. 674, and Live Stock Co. v. Booth, 102 Cal. 151, 36 Pac. 431. But can this be properly said in respect of a district, however extensive its boundaries, where only certain persons are entitled to enjoy the use, that is to say, where only the landowners in the district are entitled to the use? Such landowners may be many in number, or they may be few. It is manifest, however, that the character of the use is not to be tested by the mere number of persons who may enjoy it. No man's property can be constitutionally taken from him without his consent, and transferred to certain other men for their use, however numerous they may be. And that is just what the legislation in question authorizes to be done. Private property is thereby authorized to be assessed and sold to provide water to supply the landowners in a certain district, more or less limited in extent, for irrigation purposes. Every person within such district is not entitled to the use of the water so provided upon the same terms and conditions as every other person, but only those persons who happen to own land in the district. Of course, the property of those individuals would thereby be improved, and, indirectly, the public good be thereby advanced. But every improvement advances the public good. Every enterprise, no matter how strictly private it may be, if it be lawful, and adds to the wealth, comfort, and happiness of the people, is for the public good. The building of a house, or the planting of a useful or beautiful tree, is for the public good. But surely private property cannot be taken against the owner's consent, on the ground that the public interest would be thus promoted. Judge Cooley, in his work on Constitutional Limitations (5th Ed., p. 658), says it is not important "that the public would receive, incidentally, benefits such as usually spring from the improvement of lands or the establishment of prosperous private enterprises. The public use implies a possession, occupation, and enjoyment of the land by the public. at large or by public agencies, and a due protection of private property will preclude the government from seizing it in the hands of the

owner and turning it over to another on vague grounds of public benefit to spring from the more profitable use to which the latter may devote it." And, after referring to the statement of a learned jurist that, "if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose," says:

"It would not be entirely safe, however, to apply with much liberality the language above quoted, that 'where the public interest can be in any way promoted by the taking of private property' the taking can be considered for public use. It is certain that there are very many cases in which the property of some individual owners would be likely to be better employed or occupied to the advancement of the public interest in other hands than in their own, but it does not follow from this circumstance alone that they may rightfully be dispossessed. It may be for the public benefit that all the wild lands of the state be improved and cultivated, all the low lands drained, all the unsightly places beautified, all dilapidated buildings replaced by new, because all these things tend to give an aspect of beauty, thrift, and comfort to the country, and thereby to invite settlement, increase the value of lands, and gratify the public taste; but the common law has never sanctioned an appropriation of property based upon these considerations alone, and some further element must, therefore, be involved before the appropriation can be regarded as sanctioned by our constitutions. The reason of the case and the settled practice of free governments must be our guides in determining what is or is not to be regarded a public use; and that only can be considered such where the government is supplying its own needs, or is furnishing the facilities for its citizens in regard to those matters of public necessity, convenience, or welfare which, on account of their peculiar character, and the difficulty-perhaps impossibility-of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide. Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. *** The government also provides courthouses for the administration of justice, buildings for its seminaries of instruction, aqueducts to convey pure and wholesome water into large towns. It builds levees to prevent the country being overflowed by the rising streams. It may cause drains to be constructed to relieve swamps and marshes of their stagnant water. And other measures of general utility, in which the public at large are interested, and which require the appropriation of private property, are also within the power, where they fall within the reasons underlying the cases mentioned."

Can it be properly held that within the reasons that underlie any of the cases in which private property may be taken for a public use falls the case where it is sought to take such property in order to supply water only to certain individuals within a certain district? I think not. The property to be held by the corporation whose creation is provided for by the legislation in question is not, as said by the supreme court of California in Re Madera Irr. Dist., 92 Cal. 322, 28 Pac. 272, 675, to be held "in trust for the public," but in trust for the landowners of the district, and for nobody else. and for nobody else. Manifestly, they do not constitute the public, whether they number many or few; and for their exclusive use the private property of no man can be taken without his consent. "To lay, with one hand," said the supreme court of the United States, in Association v. Topeka, 20 Wall. 655, "the power of the government on the property of the citizen, and with the other bestow it on other individuals to aid

private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation." In Cummings v. Peters, 56 Cal. 593, it was held that several owners of mines could not condemn a right of way for a ditch through which to convey water to work their mines, because the use was a private one, being limited to specific individuals, and not intended for the general public. Precisely the same thing is true in respect to the legislation in question. It is wholly immaterial whether the specific individuals are named or are designated as the owners of the lands within the district, or whether they number a half dozen only, or as many hundred. The important and controlling fact in respect to this point is that, in the case at bar, as in the case of the mine owners referred to in 56 Cal. 593, the use of the water is limited to specific individuals, and the interest of the public is nothing more than that indirect and collateral benefit that it derives from every improvement of a useful character that is made in the state.

In Re Pequest River, 41 N. J. Law, 175, Chief Justice Beasley, speaking for the court of errors, in respect to a state statute which he explained as designed to enable one set of landowners to compel another set to co-operate, against their will, to drain that body of meadow land in which they had separate interests, said:

"The persons thus coerced manifestly suffer an invasion of their ordinary proprietary rights. Why should they thus be forced either to improve their own land or help to improve the land of others? It cannot reasonably be contended that this burden must be borne because the improvement is a public one. This was the view of the effect of this act expressed in the case of In re Drainage of Lands, 35 N. J. Law, 497; but, as such view was founded on the notion that a legislative requisition that private lands should be drained at the expense of their owners was an exercise of power similar in kind to a proceeding to condemn private property for the uses of a public road, I am compelled to think that decision rests upon a basis that is manifestly indefensible. I can see no rational ground for the assumption that the schemes to be executed by this act are, in the main, matters which, in any just sense, can be said to be of public concern. It is true that, under certain conditions, the reclamation of very extensive tracts of land which are subject to overflows by the tides, or which are otherwise submerged, may assume the importance of a public undertaking. Such was the case pre

sented in the litigation between Tidewater Co. v. Coster, 18 N. J. Eq. 519. Such would be the case if the condition of a tract of land was such as to be detrimental to the public health. But the law is not confined to such cases as these, for its scope embraces every case of a tract of meadows, no matter how small its area, which is distributed among as many as five separate owners. It is extremely plain, therefore, that the legislative purpose embodied in this act cannot be vindicated on the plea that it directly conduces to the general welfare of the community. It does not seem open to question that it is the owners alone who are interested in the compulsory improvement of these lands. True, in such cases there is a resulting gain to the public, but this is nothing more than the inevitable incident of individual prosperity. The effect of drainage is to cause a more plentiful product than the land would yield in its unreclaimed condition. In this result the owner is directly interested, the community indirectly only, and it is a perversion of legal terms to call the enterprise, on account of such collateral advantage, a public one. So false is such a contention that, if yielded to, it would legalize the compulsory establishment of manufactories, or the converting of forests into arable land, or the execution of any private enterprise whatever, as in all such matters the state has a remote interest. To call the legislative fiat that a half-dozen persons shall drain their land at their joint expense and for their