Consolidated Channel Co. v. Central Pacific Railroad

The plaintiff, by this proceeding, sought to procure, by condemnation, certain lands belonging to the several defendants, to serve as a site for a bed-rock flume to carry the dirt and gravel from its mining claims; and also as a place of deposit for the tailings and refuse matter from its claims.

The demurrer raises the question of the constitutionality of subdivision five of section one thousand two hundred and thirty-eight of the Code of Civil Procedure, authorizing proceedings of this character.

This statute provides that the right of eminent domain may be exercised in behalf of certain enumerated public uses, and in subdivision five names, among other things, “tunnels, ditches, flumes, pipes and dumping-places for working mines; also outlets, natural or otherwise, for the flow, deposit or conduct of tailings or refuse matter from the mines.”

It is clear, from the averment of the complaint, that the object sought is the appropriation of the private property of the defendants to the private use of the plaintiff. The proposed flume is to be constructed solely for the purpose of advantageously and profitably washing and mining plaintiff’s mining ground. It is not even pretended…