[Download] "State Et Al. v. Aitchison Et Al." by Supreme Court of Montana ~ eBook PDF Kindle ePub Free

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eBook details

• Title: State Et Al. v. Aitchison Et Al.
• Author : Supreme Court of Montana
• Release Date : January 15, 1934
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

Eminent Domain ? When Power to Condemn Nonexistent ? Fish and Game Commission Without Power of Condemnation ? Constitution ? Jurisdiction. Eminent Domain ? When Power to Condemn Does not Exist. 1. The exercise of the power of eminent domain must be given in express terms or by necessary implication; where the right to exercise it can only be made by argument and inference, it does not exist. Same ? Fish and Game Commission Without Power to Condemn Site for Fish Rearing Pond. 2. Held, that the statute granting certain powers to the Fish and Game Commission (sec. 3652, Revised Codes 1921, as amended by Chapter 192, Laws of 1925) does not in express terms nor by necessary implication grant it the power to condemn a site for the purpose of constructing a fish rearing pond, and that, such being the case, the presumption obtains that the legislature intended that the necessary property should be acquired by contract. - Page 336 Same ? Right Inherent in Sovereign State ? Constitution. 3. The right of eminent domain does not depend for its existence on a specific grant in the Constitution, such right being inherent in a sovereign state. Same ? Public Use of Property ? Question for Legislature and Judiciary. 4. Whether the use to which property sought to be acquired by condemnation is to be put is a public use is, in the first instance, a question for legislative determination, and ultimately one for the judiciary. Same ? Effect of Provision of Constitution Declaring Use of Water Public Use ? Function of Legislature. 5. While the effect of the provisions of section 15, Article III, Constitution, declaring the use of water for certain purposes to be a public one (held self-executing), is to foreclose inquiry into the subject by legislature and the judiciary, the questions whether the power of eminent domain shall be put in motion for any particular purpose, and whether the exigencies of the occasion and the public welfare require its exercise, rest entirely with the legislature. Same ? Condemnation of Site for Fish Rearing Pond ? Lack of Jurisdiction in District Court to Entertain Suit ? Constitution. 6. Conceding, without deciding, that the use to which the Fish and Game Commission intended to put land sought to be condemned for a fish rearing pond comes within the provisions of section 15, Article III, of the Constitution, declaring what use of water is public, in the absence of legislation granting the right to the commission to take property for such use, the district court was without jurisdiction to entertain the commissions suit to condemn it.

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