(dissenting). — It appears that Salt Lake City many years ago constructed tbe canal in question, which extends from its connection with tbe Jordan river, a distance of over twenty miles, to said city, and acquired a vested right to divert from tbe river, and conduct through tbe canal, for *298tbe use of tbe inhabitants of tbe city, a portion of tbe water of tbe river, and that botb said canal and water have ever since been appropriated to tbat public use; that long after such appropriation and tbe acquisition of said vested right the Salt Lake City Water & Electrical Power Company filed in tbe recorder’s office notices of appropriation, under wbicb, as stated in my dissenting opinion in tbe case of Salt Lake City v. Salt Lake City Water & Electrical Power Co., 24 Utah 249, 67 Pac. 672, referred to in tbe majority opinion in this case, it wrongfully claims to have acquired tbe right to divert tbe water so appropriated to public use from tbe bead of said canal, and conduct the same through a canal on tbe opposite side of tbe river to its power plant one and one-balf miles below tbe bead of tbe city’s cánal. In tbe ease of Salt Lake City v. Salt Lake City Water & Electrical Power Co., before mentioned, tbe court below decreed that said company “is tbe owner and entitled to tbe right to convey to its said power plant, and use for tbe purpose of operating tbe same, all tbe waters of tbe river to wbicb Salt Lake City is entitled by this decree, and to take into its canal, and to deliver back into/the canal of the said Salt Lake City, after such use, all of said water, undiminished in quantity and unimpaired in quality, so long as said Salt Lake City shall continue to divert its water at its present point of diversion, and to use tbe same at its present place of use; provided, however, tbat tbe right of the said Salt Lake City Water & Electrical Power Company to so take and use tbe city’s said water shall be effective only after said power company establishes by judgment of tbe court in an action at law its right to make connections with its flume and tbe city’s canal, and shall have paid to said city any sum wbicb may be awarded to said city by such judgment by way of damages therefor.” After tbe inception of the'alleged right of tbe electrical power company, and before tbe rendition of said decree, it instituted tbe pending action, not to condemn tbe city’s right to divert tbe water, as afore*299said, at the bead of its canal, but simply to establish the right to extend its flume across the river, and connect it with the city’s canal at a point opposite to its power plant, and discharge the water which the city by prior appropriation had acquired a vested right to divert at the head of its canal. In the city’s answer it pleaded the facts showing its prior vested rights and the prior diversion and appropriation of the canal and water to said public use, and that, as said canal and water were already being appropriated to a public use by the city, they were, under existing laws, expressly exempted from condemnation, and denied the right of the electrical power company to such condemnation proceedings. Said company has not yet established the right and .paid the damages required by said decree, yet the court below, without passing upon the issues raised and deciding whether the said property of the city was subject to condemnation or whether the electric power company is entitled, in the condemnation proceedings, 'to acquire the right which it seeks to establish therein, granted the order set out in the majority opinion.
The petitioners’ counsel contend that the court, in granting said order, exceeded its jurisdiction. It is a fundamental principle that no one shall be deprived of his property without due process of law. It is stated in 10 Am. and Eng. Enc. Law (2 Ed.), 289, 290, that “it is so well settled as to be considered elementary that the terms ‘by due course of law’ and ‘by the law of the land,’ are synonymous with ‘by due process-of law;’ ” and numerous cases are cited in note 1, which fully support that statement. In Black, Const. Law, section 151, it is stated that “it is well settled by repeated decisions of the courts that the two terms ‘due process of law’ and the ‘law of the land’ are of exactly equivalent import.” Judge Cooley, in his work on Constitutional Limitations, at page 430, states that: “Indeed, the language employed in^he various Constitutions is generally nearly identical, except that the phrase ‘due process (or course) of law’ is sometimes used, sometimes *300‘the law of the land,’ and in some oases both; but the meaning is the same in every case.” And on page 431, after quoting the definition of Mr. Webster given in the Dartmouth College Case, which is as follows: “By ‘the law of the land’ is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial” — he says: “The definition here given is apt and suitable as applied to judicial proceedings, which can not be valid unless they ‘proceed upon inquiry’ and ‘render judgment only after trial.’ ” On page 434 he further states: “In judicial proceedings the law of the land requires a hearing before condemnation, and judgment before dispossession.” The foregoing definition of the phrase “by the law of the land” is correct, and is also a correct definition of the term “by due process of law.” “Property,” as defined by Blackstone, “is the free use and enjoyment by a person of all of his acquisitions, without any control or diminution save only by the ‘law of the land.’ ” 1 Bl. Comm., 138; 2 Bl. Comm., 2-15. It is “the right to possess, use, enjoy, and dispose of things.” 2 Bouv. Law Diet. (Rev. Ed.). Property is the exclusive right of possessing, enjoying and disposing of a thing which is in itself valuable. Jones v. Van Zandt, 4 McLean 599, 601, Fed. Cas. No. 7501; Chicago & W. I. R. Co. v. Englewood Connecting Ry. Co., 115 Ill. 375-385, 4 N. E. 246, 56 Am. Rep. 173. In the case of Tripp v. Overocker, 7 Colo. 72, 1 Pac. 695, 697, the court, in its opinion, said: “Property is defined as being ‘the right to possess, use, enjoy, and dispose of a thing.’ The ‘thing’ mentioned does not always have a tangible or physical existence. It may be an easement, or anything else that can become the subject of private ownership. The proprietor of an irrigating ditch, whether upon his own premises or those of another, has a property ownership both in the ditch and the right of way therefor. And using or enlarging such ditch without th'e owner’s consent is as much a taking or damaging of private property, *301witbin tbe meaning of the Constitution, as would be appropriating the right of way therefor in the first instance.” In section 31, Mills, Em. Dom., it is said: “The right to use property is the valuable feature of property. Property is the right to possess, use, enjoy, and dispose of a thing. Under the term ‘property’ is included not only the land owned, but also every right which accompanies ownership and is its incident. The right of using necessarily includes the right and power of excluding others from using the same property. The Constitution is intended to protect all the essential elements of ownership which make property valuable, and when an easement of any sort is taken in property a certain portion of the property is taken, and that taking requires compensation. Easements which owners have over the lands of others are property, and a taking or interference with the same is a damage for which compensation should be paid.” In King v. Gotz, 70 Cal. 240, 11 Pac. 658, the court said that “in this State, as elsewhere, the mere possession of real property is constantly treated as property.” In the able and exhaustive opinion in the case of Eaton v. Railroad Co., 51 N. H. 511, 12 Am. Rep. 147, it is said: “In a strict legal sense land i« not property, but the subject of property. The term ‘property,’ although in common parlance frequently applied to a tract of land or a chattel, in its legal signification ‘means only the rights of the owner in relation to it.’ ‘It denotes a right . . . over a determinate thing.’ ‘Property is the right of any person to possess, use, enjoy, and dispose of a thing.’ Seldon, J., in Wynehamer v. People, 13 N. Y. 378, 433; 1 Bl. Comm. 138; 2 Aust. Jur. (3 Ed.), 817, 818. If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference ‘takes,’ pro tanto, the owner’s ‘property.’ The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property, without which absolute property can have no legal existence. ‘Use *302is the real side of property.’ Tbis right of user necessarily includes the right and power of excluding others from using the land. See 2 Aust. Jur. (3 Ed.), 836; Wells, J., in Walker v. Railway Co., 103 Mass. 10, 14; 4 Am. Rep. 509. From the very nature of these rights of user and of exclusion, it is evident that they can not be materially abridged without, ipso fació, taking the owner’s ‘property.’ If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interference annuls this right takes ‘property,’ although the owner may still have left to him valuable rights (in the article) of a more limited and circumscribed nature. He has not the same property that he formerly had. Then he had an unlimited right; now he has only a limited right.”
It is clear, both on principle and from the authorities, that the order permitting the electrical power company, pending the action, to occupy the premises sought to be condemned, and to do such work thereon as may be required for the easement sought, and to connect its flume with the city’s canal, permitted the taking of property; and as the issues controverting the right to condemn said premises were not decided before said order was granted, and are still pending for trial, the performance of the acts mentioned in the order would deprive the city of property belonging to it without due course of law, and therefore the court, in granting the order, exceeded its jurisdiction. If, upon the trial, these issues shall be decided in favor of the city, then the fact that the order permits the commission of a trespass will be emphasized.
Counsel for the electrical power company state in their brief that: “Within the meaning of the .Constitution, the property, although entered upon pending the appeal, is not taken until the compensation is ascertained in some legal mode, and, being paid, the title passes from the owner.” To support this contention they quote from the opinion in the case of Kennedy v. City of Indianapolis, 103 U. S. 599-604, 26 L. *303Ed. 550, as follows: “On principle and authority the rule is, under such a Constitution as that of Indiana, that the right to enter on and use the property is complete as soon as the property is actually appropriated under the authority of law for a public use, but the title does not pass from the owner without his consent until just compensation has been made to him.” As the majority opinion seems to favor that position, I have devoted much more space to the consideration of' the question as to what property is, and what acts constitute its taking, than I otherwise would have done, for it seems to me that there can be no reasonable doubt that performance of the acts permitted by the order would be a taking of the city’s property. To show the error of said contention, and the irrelevancy of the language quoted in its support to the facts in this case, it is only necessary to state that simply instituting an action to condemn property is not an actual appropriation of it, under the authority of law, to a public use. In condemnation proceedings such an appropriation may be authorized by and follow a judgment of condemnation, but can not precede it. It is- self-evident that, as property is the right of a person to possess, use, enjoy, and dispose of something tangible and of value, to the exclusion of all others, any diminution of that right in a condemnation proceeding before a judgment condemning the property is rendered, when the right to condemn is in issue, is the taking of property in violation of article 1, section 7, of the Constitution, notwithstanding the owner is not divested of his title.
There is an irreconcilable conflict as to whether or not statutes which authorize the court to grant orders similar to' the one in question are constitutional. I know of no case which holds that in an action to condemn property for public uses, when the right to condemn was in issue, that such an order is permissible. It is not so held in any of the cases cited by my associates.
As to whether, in an action to condemn property, when *304the right to condemn is not disputed by the owner, or after a judgment of condemnation has been rendered, it is permissible under our statutes for the court to grant an oi’der permitting the plaintiff, pending the action and the assessment of the damages, to take possession of the property sought to be condemned, and perform acts such as the order in question permits, I express no opinion, but simply hold that the statute is invalid only so far as it permits such an order before a judgment of condemnation is rendered, when, as in this case, the right to condemn is controverted by the owner.
As the court, in this case, in granting the order, exceeded its jurisdiction, the writ prayed for should be allowed.