(dissenting).
About thirty years ago the respondent, to convey water by gravity for irrigation and domestic purposes from the Jordan River, constructed, at a cost of $300,000, a canal about nineteen miles long from the river at the Jordan Narrows, in a northeasterly direction along the foothills of Salt Laice valley, to a point near Union on Little Cottonwood Creelc about fourteen miles south of Salt Lake City. In the construction of it, and to obtain required elevations to flow the water, it was necessary to traverse an uneven and broken country, at some places to remove at great expense gravel, rock, and other hard material, at others, to fill ravines and depressions. For a distance of about one and one-half miles the land over which the canal is constructed is owned by the respondent. For the remaining distance the respondent acquired and holds an easement or right of way over lands •owned by others. The canal, the right of way, and the use •of the water carried in the canal, are owned by a stock company whose shareholders, about 375 in number, own and live on the lands, about 16,000 acres, irrigated from this source, except the plaintiff, who owns 1600 shares out. of a capital stock of 8000 shares.
The appellant also is the owner of a canal about twenty-nine miles long from Jordan River to Salt Lake City in which other water belonging to it was originally conveyed from the river to Salt Lake City for irrigation purposes, sprinkling streets, and other beneficial purposes. Its water is not potable. It has exchanged much of it to farmers in the valley below the city for potable water from mountain streams. It desires to make other like exchanges. Its intake at Jordan River is about fifty feet lower in elevation than that of the respondent. If it is permitted to course its water now conveyed in its own canal through that of the respondent’s, the city, because of the difference of the elevation at the intakes, and for other reasons, will be enabled, as it alleges, to make better and more exchanges of unpo-table for potable water. The respondent’s canal at places is but large enough to convey its own water, at other places, *148much larger, and at some places is large enough, or nearly so’, to convey both the waters now conveyed therein by the respondent and that of the city now conveyed by it in its own canal. The city seeks to convey that water in the respondent’s canal by enlarging it where necessary, and, when enlarged, to use the whole thereof in common with the respondent for the purposes mentioned.
The condemnation by the city is not claimed under the general statute providing for the condemnation of property for a public use. It is claimed under the statute referred to and quoted by the Chief Justice. The conditions under which one may enlarge a constructed ditch or canal of another against his will and to use it in common with such other are there specified. The city’s canal is large enough to convey, and has conveyed, all the water from the river owned by it. It runs directly from the river to the city. The respondent’s canal sought to be enlarged and used by the city in common with the respondent does not come within fourteen miles of the city. The city does not claim that it cannot convey its water now conveyed by it in its canal to the city, but does claim that to make the exchanges it can convey and deliver it to a better advantage in and from the canal of the respondent, and that, if it is permitted to do so, it can malee better and more advantageous trades. Its purpose of enlarging the respondent’s canal is not to enable it to carry its unpotable water to the city for the use of the city and its inhabitants, but to enable it to more advantageously exchange and deliver its unpotable water to others down the valley for potable water. While that on behalf of the city might be a desirable and profitable thing to do, yet I think it doubtful whether the statute gives one the right to abandon a ditch or canal of his own, and to convey his water in that of his neighbor, merely because it is more convenient, or profitable, or advantageous to do so, or because his neighbor built a better ditch, or canal, and more prudently and wisely selected a better route or proper place of intake. The statute giving a person the right to enlarge a ditch or canal of another against his will, and to use it in common with him, seems *149to be based, not upon a mere convenience or profit or advantage, but upon a necessity specified in tbe statute. And, as the former and not the latter is the chief purpose for which the city seeks to enlarge the respondent’s canal and to use it in common with the respondent, I think it very doubtful whether the city has brought itself within the statute giving it the right to condemn. The trial court, however, found that such a necessity exists, and so instructed the jury.
Even though it should be conceded that a public necessity exists for the condemnation, and that the city under the statute has the right to condemn as sought by it, still the further and principal question here is that of compensation viewed in the light of the statute and the facts. Before coming to the main feature of this, I wish first to dispose of a matter incidental to it, that of special damages, not to the respondent, but only to one or more of its stockholders. Some evidence of that character, or at least bordering upon it, was received by the court pro forma, with the understanding that, if it was not subsequently made relevant, a motion to strike would be entertained. No such motion was made. The court, however, in its charge, directed the jury not to consider or allow any such element as damages. We must presume, until the contrary is shown, that the jury obeyed that direction. And by the special verdict, as rendered, it expressly appears.that the jury did not allow any damages based upon special or any damages or injury to a mere stockholder. The general verdict simply redeclared the amount, and no other, found by the special verdict. So whatever error was committed in so receiving the evidence was cured by the charge, and upon the face of the findings of the special verdict is harmless.
Now reverting to the main feature: We, like most states, have constitutional provisions in harmony with the United States Constitution that “private property shall not be taken or damaged for public use without just compensation,” and that no person shall- be “deprived of property without due process of law.” The legislature, of course, cannot abridge these constitutional provisions. Any statute which permits *150private property to be taken or damaged without just compensation admittedly is for naught. But it is claimed that the statute under which the condemnation is sought provides that a person under the conditions there specified has the right to enlarge a canal or ditch already constructed by compensating the owner of the canal or ditch to be enlarged “for the damage, if any, caused by said enlargement;” and since the statute only uses the word “damage,” and not also “take,” the legislature, in effect, has declared that the enlarging of a ditch or canal under the conditions prescribed by the statute is not a taking of, but may or may not be only a damage to, property, and for that reason the statute does not contravene the constitutional provision that' private property “shall not be taken or damaged without just compensation.” Such an interpretation of the statute, I think, renders it in conflict with the Constitution; for the legislature may not declare what shall or shall not constitute a taking, or what shall or shall not constitute a damage or an injury. The determination of such questions is judicial. And a legislature which should undertake to declare what shall or shall not be a taking, or a damage, would invade the prerogatives of the judiciary. Neither argument, nor the citation of authorities, it seems to me, is needed to show that a statute which attempts to authorize a taking of private property for public use without providing for just compensation, or to declare that the doing of something is not a talcing, which in fact is such, is unconstitutional. The statute here should be read and construed in connection with the Constitution. When so considered, if the former can be construed in harmony with the latter, that construction ought to be given it, and the statute held good; otherwise, it must be held bad. This statute was before this court in the case of Nash v. Clark, 27 Utah, 158, 75 Pac. 371, 1 L. R. A. (N. S.) 208, 101 Am. St. Rep. 953, 1 Ann. Gas. 300, and in the same case before the Supreme Court of the United States, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171. The objection there urged against the statute was that the proposed use by an individual of an enlarged' ditch was *151not a public use. The opinions of both the state and Federal Supreme Court are confined to a consideration of that question. Both held it to be for a public use. No other question was considered by either court. The question of whether the statute was objectionable because it only provided for compensation for a damage to property, and not also for a fating of property, seems not to have been raised or considered. Both courts seem to have regarded the statute as providing compensation for a taking or damage and as being in that particular in harmony with the Constitution that private property shall not be taken or damaged for public use without just compensation, and confined the consideration of the question of the validity of the statute to the objection raised that the things authorized by the statute was a taking not for a public use. Both courts treated the things permitted to be done as a taking of property, but held it to be a taking for a public use. This is apparent from the language in the opinion of the state court where the court, after referring to the constitutional provisions mentioned, says:
“This provision is construed to mean that .private property cannot be taken for strictly a private use, which counsel for respondent concede to be the true and proper construction. This brings us to the only question presented by this appeal, to wit: Was the condemnation of appellants’ land in this case in law and in fact for a public use?”
and from the language in the opinion of the Federal Supreme Court:
“We do not desire to be understood by this decision as approving of the broad proposition that private property may be taken '-in all cases where the taking may promote the public interest and tend to develop the natural resources of the state. We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of the opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining water for an individual.”
Since both these courts treated the statute as being in harmony with the Constitution, and as providing for com-*152pensat-ion not only for a damage to, but also a taking of, property, and that the things authorized by the statute might not only be .a damage to, but also a taking of, property, I, too, shall so regard and consider the statute. I do not see on what other theory its validity can be upheld. The trial court so regarded the statute, and as so providing for compensation not only for a damage to, but also a taking of, property, and on such theory submitted the case to the jury.
The further question, then, is, Do the things here sought to be done constitute a taking of, or only damage to,, property, or both ? This, as I view it, is the crucial point which chiefly divides the parties. The determination of that question must be determined from what is in fact sought and permitted to be taken, and what, in fact, are the consequences occasioned by the condemner by its proposed enlargement and use of the canal. The city alleged that the respondent “is the owner of a right of way and canal” described in the complaint; that the city “intends to take and condemn an easement and right of way through and along the canal of the” respondent, and as shown by a map attached to the complaint; and that the use of respondent’s “canal and right of way hereby sought to be taken and condemned is intended to be, and will be, used by the plaintiff in common with the defendant in its use of the same.” Its prayer is that it be given a perpetual right of way and easement for the diversion and conveyance of 1'84 cubic or second feet of water through the respondent’s canal, and that it for that purpose, be permitted to enlarge the canal by widening and deepening, or by narrowing and deepening it, and, when so enlarged, to acquire an interest in the whole canal, and to use it in common with the respondent. Notwithstanding these allegations, the city contends that by the proposed condemnation and enlargement of the respondent’s canal, and the using of it in common with the respondent, it nevertheless does not take anything, except the alleged worthless land owned by the respondent upon which a very small portion of the excavations of the proposed enlargement is to be made; that the enlargement of the canal, and the proposed use of *153the whole thereof by the city in common with the respondent, when enlarged, is no damage to the respondent, for, it asserts, that, after such enlargement and common use as proposed, the respondent can still use the canal to the same advantage, and with the same beneficial results for the conveyance and delivery of its waters, now conveyed by it, as it could and did before the enlargement was made. Its position on this point is best shown by a request to charge asked by it, its exception to the court’s refusal to- give it, and its exceptions to portions of the court’s charge, upon which exceptions its chief complaint is based. It requested: “If you find from the evidence that the entrance upon, and occupancy of defendant’s right of way in said canal, as proposed by the plaintiff, will not interfere with said right of way, so as to prevent defendant from diverting, conveying, and delivering water to the water users under said canal, as certainly and effectually as it now does, then the damage to said right of way should be nominal, and you should so find by your verdict.” This the court refused, and in harmony with the Constitution charged that: “The jury are instructed that the city has no right to take or to damage the private property of the defendant, or any part thereof, without just compensation for such property and the damage thereto.” And further charged that: “The defendant is the owner of the canal described in the pleadings, including the right of way, and all the rights, privileges, and appurtenances pertaining thereto. Although such canal may not occupy the entire right of way, or said company may not have used said canal, and may not use it to its full capacity, such additional or unused capacity of said canal or right of way, if any, is the property of said company, and the jury are further instructed that, such being the property of said defendant, said defendant cannot be deprived of the use of the same without due process of law, and no part of the same can be taken or damaged for public use or for the use for which plaintiff seeks to appropriate it in this case without just compensation.”
*154The city claims that its request ought to have been given, and that the court erred in the charge because (1) by the terms of the statute the proposed enlargement and use of the canal is not a taking; and (2) because there is no evidence of a taking rendering a charge in such particular applicable. It, of course, concedes that the respondent owns the canal proposed to be enlarged, and an easement or right of way over which it is constructed, and that the city seeks to enter and occupy them, and to use the whole of them in common with the respondent, and for that purpose to acquire an interest in the whole thereof. Confessedly these things are property. Says Mr. Mills, in his work on Eminent Domain, section 31:
“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, hut 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. Basements 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.”
Said the court in the case of Trippe v. Overacker, 7 Colo. 72, 1 Pac. 695, where condemnation, by the enlargement of a ditch was sought, under a statute analogous to ours:
“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 the owner’s consent is as much a taking or damaging of private property within the meaning of the Constitution as would be the appropriating of the right of way therefor in the first instance. But such taking or damaging cannot be tolerated except upon payment in a constitutional manner of just compensation. . . . The right to enlarge and use the ditch of another already constructed will be enforced in the same manner and under the same law as the right to take or damage any other kind of private property.”
*155The same court, again speaking of the proprietor’s right of way over which he had a constructed ditch sought to be enlarged and used by the condemner, in the case of Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 Pac. 742, said:
“The property taken or sought to be taken was a right of way through defendant’s ditch. Such right of way was the property of the defendant. It is true petitioner did not seek to deprive defendant of its rights of way altogether, hut he sought to acquire an interest therein to he used in common with the defendant. Such right of way had a money value, and the interest which the petitioner sought to acquire therein also had a money value.”
I do not think either the case of the Postal Tel. & Cable Co. v. O. S. L. Ry. Co., 23 Utah, 474, 65 Pac. 735, 90 Am. St. Rep. 705, or that of Chicago, Burlington, etc., R. Co. v. Chicago, 166 U S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979, cited by the city, and relied upon by the majority members of the court in support of the city’s contentions, are in point. In the first case the condemner, the Postal Telegraph Company, under a statute expressly conferring the right, sought to condemn a right of way over a right of way of the railroad company for the purpose of erecting thereon telegraph poles and stringing wires upon them for the use of a telegraph business. This was sought upon the theory that, where lands already taken and appropriated to a public use for railroad purposes, such lands so taken and appropriated for such purposes are subject to another public use, if such other use does not supersede or interfere with the former use. It was there held that, while such proposed use by the telegraph company was a taking of property of the railroad company, yet the value of the property so taken, and the amount o.£ damages suffered by it, were but nominal, because the only property right which the railroad company had, and which it claimed was invaded, was a mere easement or right of way, and that that was not superseded or interfered with. But the telegraph company did not there seek to enlarge or condemn the railroad track or right of way of the railroad company, and to use it in common with the railroad company, *156or to enlarge, or add to, its telegraph poles, or arms or wires upon them, and to use them in common with the railroad company. Nor did it seek to enter upon or occupy, or to acquire any interest in, any of these physical or corporeal things. It did not seek to engage in the railroad business and to operate cars upon the track or roadbed of the railroad company, or to conduct a railroad business upon its right of way, or to use any part of its property for such a purpose.
In the other case the city of Chicago sought to open or extend a public street, and for that purpose condemned lands of individuals and a small portion of a right of way of the railroad company across which the street was proposed to be opened or extended. The jury allowed the individuals whose lands were taken for that purpose substantial damages. It allowed the railroad company only nominal damages. The railroad company complained of that because, as it asserted, the value allowed for its property taken was so inadequate as to constitute a taking of property without compensation, and that the action of the jury in assessing the damages was discriminatory. Again, the court held that, though there was a taking, yet the value of the thing taken from the railroad company was but nominal, because the placing of the second easement for a public use, the opening or extending of a public street across the railroad’s right of way, in no way materially superseded or interfered with its easement or conduct of its business. Said the court:
“Compensation was awarded to individual owners upon the basis of the value of the property actually taken, having regard to the uses for which it was best adapted, and the purposes for which it was held and used, and was likely always to be used. Compensation was awarded to the railroad company upon the basis of the value of the thing actually appropriated by the public— the use of the company’s right of way for a street crossing— having regard for the purposes for which the land in question was acquired and held, and always likely to be held. In the case of individual owners they were deprived of the entire use and enjoyment of their property, while the railroad company was left in the possession and use of its property for the purposes for which it was being used, and for which it was best adapted, subject only to the right of the public to have a street across it.”
*157How unlike, it seems to me, these cases are to the one in hand. Here the condemner, the city, is not seeking to have a mere easement for a public use placed across or upon an other easement for a public and wholly dissimilar use, like that of extending a street or building a bridge across the respondent’s right of way, or placing telegraph or telephone poles upon and along its right of way. It seeks not -only in part to occupy, take, and condemn the respondent’s right of way, but also in part to occupy, take, and condemn the canal itself, constructed by the respondent at a cost of $300,000, the most valuable part of its property, and to acquire an interest in the whole thereof, and to use it in common with the respondent for all time to come without any substantial compensation. True, as said by the Colorado court, not for an exclusive use. by the condemner, but for a common and equal use and interest therein with that of the respondent. The theory of the city, and as embodied in its refused request, that by the proposed enlargement and use of the canal in common with the respondent it does not take anything from the respondent, is based on the ground that the enlargement and common use will not interfere with the respondent’s particular use of the canal as it was then, and prior to the condemnation had been, used by it. That is, if the respondent after, as before, the enlargement, can as readily convey and deliver its waters owned and conveyed "by it before the enlargement, then the city has taken nothing from the respondent, nor has it damaged it in any substantial sum. That is but to say that if a proprietor has a house of five rooms, and the condemner, if the right so to do were conferred, enlarges the house by adding five more rooms, and by so doing acquires an interest in the whole house and a right to use the whole thereof in common with the proprietor, the cdndemner has taken nothing from him; the proprietor still being able to house and shelter his family, and use the building for household purposes after as before the condemnation. To the extent that the condemner occupies the house, the lands, the appurtenances, the easements, etc., of course he takes. But the proprietor also has the *158right to an exclusive possession of bis premises, the sole right to use, to enjoy, to dispose of, and to exercise dominion over, them. These are all property rights, and in such case would clearly be invaded and taken from the proprietor. So here, to the extent that the city seeks to- enter, occupy, and use the respondent’s canal, its right of way, and its lands, I think it should be held a taking. So, too, the respondent, as any other proprietor, has the right to an exclusive possession of its property, to the sole right to use, to enjoy, to control, and to dispose of it. By the proposed condemnation these rights are also clearly invaded and taken from the respondent. They all have substantial value; and, when so taken, require compensation. It may be somewhat difficult to ascertain the amount of that value, as well as the amount of the value of the canal and right of way confessedly sought to be entered upon and occupied by the city, and in which an interest is sought to be acquired by it. There may be many cases where the determination of the amount of the value of the property taken or damaged, and many instances where the determination of the amount of unliquidated damages is more or less uncertain, and where it is difficult to apply any particular fixed standard or rule that will do justice to the parties, and where the most the courts can accomplish is to approximate that result. In this respect much must be necessarily left, upon the evidence adduced, to the judgment and discretion of the jury under the supervision and control of the trial court. But because of that difficulty one who has suffered substantial damage or injury is not to be deprived of full and just compensation for the loss or injury sustained by him.
The city in its contention that the proposed enlargement and use of the canal is not a taking, and at most can only be a nominal damage, with great avidity seizes upon certain language of the court in the case of Chicago, Burlington, etc., R. Co. v. Chicago, supra, that “the measure of compensation,” as there applied to the facts of that case, “is the amount of decrease in the value of the use for railroad purposes caused by the use for purposes of a street, such use for the purpose of a street being exercised jointly with the *159use of the company for railroad purposes,” and by rephrasing such statement it then seeks to apply it hereby declaring that the measure of compensation for the proposed enlargement and use of the canal by it is the amount of decrease, if any, in the value of the use of the canal for canal purposes caused by the enlargement of ‘the canal; and, since the respondent can convey and deliver its waters in and from the canal now therein conveyed by it, after the proposed enlargement as before, therefore its damage is only nominal. Since a certain measure of compensation was properly applied to the facts in the Chicago Case, it does not follow that that measure should be applied here on wholly dissimilar facts and conditions. In the Chicago Case the city did not seek to enlarge or occupy the company’s entire railroad track or roadbed from beginning to end, or any part thereof, nor to use it or any part thereof for a purpose in common with that of the company, or otherwise to use its track, or roadbed, or right of way, in the conduct of a railroad business, or to acquire any interest therein for a use or purpose for which the company was itself using it. Had the city there sought to do that, or to operate cars over the enlarged track or roadbed, or upon or over the railroad’s right of way in common with the railroad company, and to be permitted to acquire an interest in the whole thereof would the court then have said that as long as the city, in the conduct of such operations and use of the property, did not interfere with the operations and use of the railroad company, as it then, and prior thereto had made of its property, the damage suffered by, and the value of the property taken from it, would only be nominal? Certainly not. Language with respect to the measure of compensation as applied to facts in a particular case which while there appropriate, still may, as applied to another and wholly dissimilar case in its facts, be entirely inappropriate. That is true here. Carrying the city’s claim and the theory embodied in its refused request to a natural conclusion, they lead to this: Two persons own water obtained and supplied from a common source. Each owns 150 cubic or second feet of water. One, the first, with*160out accurate surveys or topographical engineering, constructs an inefficient ditch or canal, and unwisely and imprudently selects an improper place of intake. The flow of the water desired to be conveyed is therefore sluggish, and the entire-flow desired impossible. The other, the second, selects the-most feasible route, condemns or obtains a proper right of way, and upon a careful survey and topographical engineering, and upon accurately ascertained variations of levels and contour, wisely and prudently selects a proper place of intake, and constructs a good and efficient ditch or canal with a capacity of 275 cubic or second feet at a greatly increased expense over that of the first. The first, seeing the inefficiency of his watercourse, his folly in selecting the place of his intake, the unwise and imprudent selection of the route of his watercourse and the country through which his canal or ditch is constructed, and seeing the wise and prudent conduct in those particulars of the second, and seeing that by enlarging the second ditch or canal, by widening and deepening it to an increased capacity of twenty-five cubic or second feet, it then will have sufficient capacity to carry the waters of both, therefore seeks to' so enlarge it, and by such means to acquire an interest therein, and, when enlarged, to use the whole canal in common with the second for the purpose of coursing therein the whole of his 150 cubic or second feet of water. And if such enlargement and use by him can be made, without interfering with the second’s use of the canal or ditch, to carry and deliver his 150 cubic or second feet of water, the first, under the claim and contention here made, could be heard to say that he has not taken or acquired anything of a substantial value from the second, nor caused him anything more than nominal damage. If that be true, why not carry this doctrine- and theory a little further, and say that if one owning 150 cubic or second feet of water constructs a. canal with a capacity of 300 cubic or second feet, another, also owning 150 cubic or second feet of water from the same source of supply, and who has no ditch or canal, could be permitted, without compensation, to acquire an interest in the canal and to use it *161to convey and deliver his water in common with that of the proprietor, if the use of such other did not interfere with the proprietor’s use to ca.rry and deliver his 150 cubic or second feet of water? That is but to say if one builds a house of ten rooms and uses only eight, another, if the right of condemnation were given, could, without compensation, take and occupy the other two, acquire an interest in and the right to use the whole house in common with the proprietor, if such other behaved himself, and did not disturb the proprietor, or interfere with his own use of the house-. Should it be said that in both these latter instances there would be a taking of something of substantial value which under the Constitution requires compensation, then does it not follow that in the other there is also a taking of something, only less in extent, which also has substantial value, and which also requires compensation?
It therefore seems to me that by the city’s proposed enlargement" of the canal, and to enter upon, occupy, and use the whole thereof in common with the respondent, and by so doing to acquire an interest therein in common with the respondent, it not only takes the land owned by the respondent and upon which a, portion of the proposed excavations for the enlargement is to be made, impairs and interferes, as shown by the evidence, with the respondent’s conduct of its business in the conveyance and delivery of its own water, but that the city also occupies and takes, not exclusively, but in common with the respondent, the whole of the canal itself, and the right of way over which it is constructed, and also invades and takes from the respondent the right of a proprietor to exclusively possess and use, and to enjoy, and to dispose of his property. And, as heretofore said, these things all have substantial value, and when taken in the manner proposed require compensation. While the amount of the value of the things so taken and the amount of the damage suffered may be somewhat difficult to justily estimate and fix, yet the determination of what amount is just compensation upon the evidence adduced must largely be left to the sound *162judgment and discretion of the trial court and jury. I think the city has no just complaint of the theory upon which the ease was let to the jury, and, as I am not prepared to say that the verdict is not supported by the evidence, I therefore am of the opinion that the judgment of the court below should be affirmed.