65. Public Use
1. "The property of a citizen can only be taken by an act of the legislature for a public use, when a necessity exists therefor, and when compensation to the owner has first been made or secured." Dayton Mining Co. v. Seawell, 11 Nev. 394, 399 (1876) (#7)
2. The decision or declaration of the legislature is not conclusive, but should be "treated by the courts with the consideration which is due to a co-ordinate department of the state government...." Id. at 400 (#7)
3. The court agrees with the petitioner that the term "public use" should be given a broad meaning - "any purpose of great public benefit, interest or advantage to the community is a taking for a public use." Id. at 400; 402 (#7)
4. "That the purposes mentioned in the act 'are of vital necessity to the people of this state,' cannot be denied; that mining is the paramount interest of the state is not questioned; that anything which tends directly to encourage mineral developments and increase the mineral resources of the state is for the benefit of the public and is calculated to advance the general welfare and prosperity of the people of this state, is a self-evident proposition." Id. at 402 (#7)
5. Approving following language: "If land is taken for a fort, a canal, or a highway, it would clearly fall within the first-class [public use]; if it is transferred from one person to another, or to several persons solely for their peculiar benefit and advantage, it would as clearly come within the second-class [private use]. But there are intermediate cases where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must necessarily depend upon its own peculiar circumstances.... (E)verything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and to the prosperity of the whole community." Id. at 404-405. (#7)
6. "Mining is the greatest of the industrial pursuits in this state. All other interests are subservient to it.... The mines are fixed by the laws of nature...." Id. at 411.
7. "It is certain that this view, if literally carried out to the utmost extent, would lead to very absurd results, if it did not entirely destroy the security of the private rights of individuals. Now while it may be admitted that hotels, theaters, stage coaches, and city hacks, are a benefit to the public, it does not, by any means, necessarily follow that the right of eminent domain can be exercised in their favor. The truth is, that there is a wide distinction between railroads and hotels, and, also, between the business of mining and that of conducting theaters. A railroad, to be successfully operated, must be constructed upon the most feasible and direct route; it cannot run around the land of every individual who refuses to dispose of his private property upon reasonable terms. In such cases the law interferes, and takes the private property of the citizen upon payment of a just compensation, in order to promote an interest of great public benefit to the community, which could not be successfully carried on without the exercise of this power of eminent domain. The same principle applies to the business of mining; but it cannot reasonably be applied to the building of hotels or theaters. In the building of hotels and theaters the location is not necessarily confined to any particular spot, and it is always within the reach of capital to make the proper selection, and never within the power of any individual, or individuals, however stubborn or unreasonable, to prevent the erection of such buildings. The object for which private property is to be taken must not only be of great public benefit and for the paramount interest of the community, but the necessity must exist for the exercise of the right of eminent domain...." The court, however, may be "powerless to furnish the remedy" for absurd results, since "the protection which the people of the state enjoy against unjust and absurd legislation, 'is not derived from constitutional restrictions, but from the force of public opinion and the character of our representatives.'" Id. at 410-412.
8. (Definition) "'where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience or welfare, which, on account of their peculiar character and the difficulty, perhaps impossibility, of making provision for them otherwise, it is alike proper, useful and needful for the government to provide.'" Overman S.M. Co. v. Corcoran, Nev. 147, 152, (1880) (#10)
9. Whether mining is a public use may depend upon "the situation of the state and its possibilities for land cultivation, or the successful prosecution of its mining or other industries." Always strongly inclined to uphold "where it can be fairly done." Factors must be "general, notorious, and acknowledged in the state, and the state courts may be assumed to be exceptionally familiar with them. They are not the subject of judicial investigation as to their existence, but the local courts know and appreciate them. They understand the situation which led to the demand for the enactment of the statute, and they also appreciate the results upon the growth and prosperity of the state, which, in all probability, would flow from a denial of its validity." Goldfield Con. v. O.S.A. Co., 38 Nev. 426, 442, 446, 447, 150 P. 313 (1915) (#16)
10. "Public use is in every case a matter of local policy." Id. (#16)
11. "It is well established in this state that mining, being a paramount industry, is a public use, and the power of eminent domain can be exercised in the furtherance of the development of mines and the extraction and reduction of ores contained therein." Standard Slag Co. v. Court, 62 Nev 113, 114-115, (1943) (#19)
12. Open pit mining is included within the statute authorizing eminent domain for all mining purposes. Id. at 119 (#19)
13. City housing authority created for development of low-rent housing and slum-clearance projects may be invested with power of eminent domain, for it is a municipal corporation created for a public governmental purpose. McLaughlin v. L.V.H.A., 68 Nev. 84, 227 P.2d 206 (1951) (#21)
14. Eminent domain is proper for a change of location, as well as original construction. Aeroville v. Lincoln Power, 71 Nev. 320, 322-323, 290 P.2d 970 (1955) (#25)
15. Legislative declaration of public interest is "'well-nigh conclusive.'" The role of the judiciary in determining whether the power of eminent domain is being exercised for a public purpose is an extremely narrow one. Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 120, 379 P.2d 466 (1963) (#35)
16. "(T)hough the legislative declaration of public use may not be final, a court must pay it proper deference and, if a doubt exists, the legislative declaration shall prevail." Id. at 120-121 (#35)
17. Once an area is properly considered a blight, buildings within the area may be taken even though they may be sound by themselves. Id. at 122 (#35)
18. Eminent domain for redevelopment is not improper because private enterprise is chosen to effect the redevelopment. (#35)
19. "Possessory use by the public is not an indispensable prerequisite to the lawful exercise of the power of eminent domain." Id. at 126 (#35)
20. Public Use/More necessary: "'(P)roperty of a private corporation devoted to a public use, although not clothed with a specific exemption from subsequent condemnation, cannot be taken to be used in the same manner for the same purpose by a different corporation, even by express enactment of the legislature.'" NL Industries v. Eisenman Chemical Co., 98 Nev. 253, 258, 645 P.2d 976 (1982) (#66)
21. Public Use/More necessary: "NRS 37.030(3) permits condemnation of property already appropriated for public use if a more necessary public use is contemplated by the condemnor." Id. at 259 (#66)
22. Public Use/More necessary: Eminent domain may be exercised for mining purposes, even to the extent of condemning mineral deposits, but mining minerals is not a more necessary public use than holding them in reserve for future mining. (#66)
23. Public Use/More necessary: "The evidence shows that, while the property was located and patented as mining ground, it was not in fact being worked, and had not been worked for several years. The mere possibility that the land may some time in the future be used by appellants for mining purposes will not prevent condemnation." Goldfield Con. v. O.S.A. Co., 38 Nev. 426, 446 (1915).