dissenting.
Section 15, article II of the Constitution provides: “That private property shall not be taken or damaged for public or private use without just compensation.”
The statement in the majority opinion, that “This provision refers, and is limited to proceedings in eminent domain, or to eases where injury results by reason of the taking of property in which the abutting owner has an interest,” I regard as the vital and fundamental error in the opinion.
This announcement plainly places an arbitrary limitation upon one of the provisions of the Bill of Rights It finds no support in sound reason or justice.
It is true that the question has arisen in the suggested class of cases generally, but the provision of the Constitution is general in its terms, and if the charter of our liberties is to be preserved, it must be held to be universal in its application.
In this case the natural result of the construction of the ditch, upon adjacent and higher lands, and the flow of water through it, was to so damage the plaintiff’s lands as to result in their complete destruction, and to likewise destroy the use of his domicile.
It is fundamental in the law that wherever there is a right there is a remedy. This maxim is especially applicable where there is a constitutional guaranty of that right.
If the ditch company had constructed the ditch across plaintiff’s lands, then the latter could recover in full for the damage, is the view of the majority of the court. But because the ditch company elected to construct its ditch just above his lands, an action and proceeding in which plaintiff could have no voice, then the ditch company, and as a natural *176and direct result of such location, may déstroy the plaintiff’s lands with impunity. This conclusion is, to my mind, absurd and unreasonable, and in plain violation of the constitutional guaranty;
It is also in violation of section 3 of our Bill of Rights, which provides: “That all persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.”
It is likewise in violation of section 6 of the Bill of Rights; providing that, “The courts of justice shall be open, and a speedy remedy afforded for every injury to person, property or character,” in that the opinion closes the doors of justice to the plaintiff, and denies him any remédy for a palpable injury to his property, the unquestioned result of the plaintiff’s acts, purposely done for its specific benefit, and for the public benefit.
It will not do to say the defendant is relieved because the taking of the lands of the adjoining proprietor was in a lawful way. It can make no difference how one acquires property, or the use of it, whether by purchase or condemnation, he cannot thereby or thereafter lawfully damage or destroy the property of his neighbor, by his own wilful act, lawful or unlawful in itself, without compensation.
This protection is the very spirit of the law of eminent domain, and to say that the citizen has no protection when the law of eminent domain cannot apply, is preposterous.
To my mind the principle announced is in clear violation of the 14th amendment of the Constitution of the United States, and of the provisions of our state constitution, in that it denies to the plaintiff due process of law, and likewise the equal protection of the law.
The fundamental principle of our government is the inalienable right of all men to life, liberty and the pursuit of *177happiness. It will not be disputed that this includes the right to hold and enjoy property, without molestation, except by due process of law, followed by just compensation.
This court may with equal propriety place a limitation and restriction upon every other declaration of the Bill of Rights. It may place restriction upon the right to the writ of habeas corpus; it may place a limitation upon the guaranty of freedom from imprisonment for debt; it may curtail the guaranty of liberty of speech, for the equal protection of the law, goes to the rights of property as well as to the liberty of the person.
The principle announced in the majority opinion, is repugnant to my every sense of justice, and in my opinion, is in conflict with the very letter and spirit of our laws, and, as Mr. Justice Teller has so clearly pointed out, there is in this case a plain remedy under the common law, if not by the statutes.