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that, although the use of water in the state of Utah for the purposes of mining or irrigation or manufacturing may be a public use where the right to use it is common to the public, yet that no individual has the right to condemn land for the purpose of conveying water in ditches across his neighbor's land, for the purpose of irrigating his own land alone, even where there is, as in this case, a state statute permitting it.

In some states, probably in most of them, the proposition contended for by the plaintiffs in error would be sound. But whether a statute of a state permitting condemnation by an individual for the purpose of obtaining water for his land or for mining should be held to be a condemnation for a public use, and, therefore, a valid enact ment, may depend upon a number of considerations relating to the situation of the state and its possibilities for land cultivation, or the successful prosecution of its mining or other industries. Where the use is asserted to be public, and the right of the individual to condemn land for the purpose of exercising such use is founded upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of the state, where the right of condemnation is asserted under a state statute, we are always, where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a state statute providing for such condemnation. The validity of such statutes may sometimes depend depend upon many different facts, the existence of which would make a public use, even by an individual, where, in the absence of such facts, the would clearly be private. Those facts 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. These are matters which might properly be held to have a material bearing upon the question whether the individual use proposed might not in fact be a public one. It is not alone the fact that the land is arid and that it will bear crops if irrigated, or that the water is necessary for the purpose of working a mine, that is material; other facts might exist which are also material, such as the particular manner in which the irrigation is carried on or proposed, or how the mining is to be done in a particular place where water is needed for

that purpose. The general situation and amount of the arid land or of the mines themselves might also be material, and what proportion of the water each owner should be entitled to; also the extent of the population living in the surrounding country, and whether each owner of land or mines could be, in fact, furnished with the necessary water in any other way than by the condemnation in his own behalf, and not by a company, for his use and that of others.

These, and many other facts not necessary to be set forth in detail, but which can easily be imagined, might reasonably be regarded as material upon the question of public use, and whether the use by an individual could be so regarded. With all of these the local courts must be presumed to be more or less familiar. This court has stated that what is a public use may frequently and largely depend upon the facts surrounding the subject, and we have said that the people of a state, as also its courts, must, in the nature of things, be more familiar with such facts, and with the necessity and occasion for the irrigation of the lands, than can any one be who is a stranger to the soil of the state, and that such knowledge and familiarity must have their due weight with the state courts. Fallbrook Irrig. District v. Bradley, 164 U. S. 112, 159, 41 L. ed. 369, 388, 17 Sup. Ct. Rep. 56. It is true that in the Fallbrook Case the question was whether the use of the water was a public use when a corporation sought to take land by condemnation under a state statute, for the purpose of making reservoirs and digging ditches to supply landowners with the water the company proposed to obtain and save for such purpose. This court held that such use was public. The case did not directly involve the right of a single individual to condemn land under a statute providing for that condemnation.

We are, however, as we have said, disposed to agree with the Utah court with regard to the validity of the state statute which provides, under the circumstances stated in the act, for the condemnation of the land of one individual for the purpose of allowing another individual to obtain water from a stream in which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless.

But 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 opinion that

the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining the water for an individual, where it is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. Other land

owners adjoining the defendant in error, if any there are, might share in the use of the water by themselves taking the same proceedings to obtain it, and we do not think it necessary, in order to hold the use to be a public one, that all should join in the same proceeding, or that a company should be formed to obtain the water which the individual landowner might then obtain his portion of from the company by paying the agreed price, or the price fixed by law.

it was rendered by consent, where to assume that it was a consent decree disregards the rule of public policy of Illinois and the express terms of the decree, and gives to the ex parte stipulation of the husband that the wife was living separate and apart from him without her fault the effect of a consent to the decree, while the Illinois courts regarded it as an admission concerning the state of the proof on the record, which, though rendering it unnecessary for the court to analyze the proof, did not deprive it of the power to make a judicial finding of the fact.

2. A decree for the separate maintenance of the wife in a suit brought under Ill. Laws 1877, p. 115, is not less res judicata in Illinois on the question of her desertion because it was rendered by consent, where the appellate court and the supreme court of that state have affirmed the decree and the finding therein made that the wife was living separate and apart from her husband without fault on her part.

3.

A decree in favor of the wife in a suit for her separate maintenance under Ill. Laws 1877, p. 115, authorizing such relief where the wife is living separate and apart from her husband without her fault, is conclusive upon the husband in the courts of California on the issue whether the same separation constitutes wilful desertion on her part.

The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous states of the West that they are in the states of the East. These rights have been altered by many of the Western states by their constitutions and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the states of the East, and such alterations have been made for the very purpose of thereby contributing to the growth Argued April 20, 1905. Decided May 15, and prosperity of those states, arising from mining and the cultivation of an otherwise valueless soil, by means of irrigation. This state of California to review a judgment N ERROR to the Supreme Court of the

court must recognize the difference of climate and soil, which render necessary these different laws in the states so situated. We are of opinion, having reference to the above peculiarities which exist in the state of Utah, that the statute permitting the defendant in error, upon the facts appearing in this record, to enlarge the ditch, and obtain water for his own land, was within the legislative power of the state, and the judgment of the state court affirming the validity of the statute is therefore affirmed.

Mr. Justice Harlan and Mr. Justice Brewer dissented.

(198 U. S. 317)

ADELAIDE M. HARDING, Plff. in Err.,

v.

GEORGE F. HARDING.

Judgments-full faith and credit-consent decree-conclusiveness of decree for wife's separate maintenance on the issue of her desertion.

1. An Illinois decree for the separate mainte

nance of the wife cannot be denied conclusive

ness in the courts of another state on the

question of her desertion, on the theory that

I

[No. 222.]

1905.

which affirmed a judgment of the Superior Court of San Diego County, in that state, in favor of the husband in an action for divorce on the ground of desertion, in which an Illinois decree for the separate maintenance of the wife was pleaded as res judicata. Reversed and remanded for further proceedings.

See same case below, 140 Cal. 690, 74 Pac.

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Mr. Justice White delivered the opinion of the court:

The law of Illinois (Laws of Illinois, 1877, p. 115) provided as follows:

"That married women who, without their fault, now live or hereafter may live separate and apart from their husbands, may have their remedy in equity in their own names, respectively, against their said husbands for a reasonable support and maintenance while they so live or have so lived separately and apart; and in determining

the amount to be allowed the court shall have reference to the condition of the par

ties in life, and the circumstances of the respective cases; and the court may grant allowance to enable the wife to prosecute her suit, as in cases of divorce."

On February 3, 1890, Adelaide M. Harding filed her bill in the circuit court of the county of Cook against her husband, George F. Harding.

It was alleged that the parties were residents of the city of Chicago. In substance, in the bill and an amendment, it was charged that, without her fault, and in consequence of the cruel treatment of her husband, and of his adultery, the plaintiff had been obliged to live apart from him. It was prayed that the court decree that she was so living apart without her fault, that it would award her the custody of certain of the children of the marriage, and that the defendant be decreed to provide for the separate maintenance of the complainant and the support of the children. The answer and an amendment thereto admitted the marriage, the birth of the children, and the residence in Chicago, denied the charges of cruelty and other misconduct, and averred that the complainant was living apart solely through her own fault, and that she had refused to return after repeated requests, which were reiterated in the answer. We shall hereafter, as far as possible, refer to the parties to that litigation, who are the parties to this suit, as the wife and the husband, respectively.

The court by an interlocutory order, fixed a sum to be paid by the husband for the fees of the solicitors of the wife, for the maintenance of the wife during the pendency of the cause, and for the support of the minor children.

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for separate maintenance shall be entered in
favor of the plaintiff without finding or trial
of the issue in this case.
of the issue in this case. That this consent
is not collusive is sufficiently shown by the
length and character of the litigation. I
further offer and stand ready to make such
other or further or different stipulation by
an amendment of the pleadings or otherwise,
as may, in the opinion of your honor, be
required to make it unnecessary for the
court to hear and decide upon the issues in
evidence in this case after a long and ex-
pensive hearing. To this end I declare my
willingness to stipulate, and I do hereby
stipulate, that the plaintiff, at the time of
the commencement of this suit, was living
and ever since has been living separate and
apart from her husband without her fault,
and may take a decree with my consent for
such sum as may be reasonable and just for
her separate maintenance. This is the same
offer which I have made by way of an at-
tempt at compromise ever since the com-
mencement of this suit, in which effort at
compromise I have not hesitated to offer
double the amount that, in my opinion,
should be allowed for her separate mainte-
nance by the court."

The wife, on January 17, 1893, filed a counter statement. She in substance declared that she had no previous knowledge of the intention of her husband to file the paper which he had submitted to the court; that she had always been confident of the justice of her cause and of maintaining the same, and that the testimony then taken in the cause gave her great certainty of the establishment of her rights; that she had always been willing to adjust the amount to be allowed for her separate maintenance, provided there was a "finding and decree of this court thereon that she was, at the time of the filing of the bill herein, living separate and apart from the defendant without fault on her part, and has been so living ever since." The statement then referred to certain negotiations which had been pending between the husband and wife on the subject of the amount of separate maintenance to be allowed, enumerated previous offers made by the husband on this subject, which she had been unwilling to accept, because the husband had insisted on either the dismissal of her suit, a decree in his favor, or an agreement which would not preclude him from suing for a divorce for desertion arising from her having separated from him. It was then stated, in substance, that, as interpreted by the wife, the paper filed by the husband waived the conditions which he had previously insisted upon, and assented to a decree finding that the separation was without her fault, and she was willing, for the Hence, I give my consent that a decree sake of preventing further scandal, to ac

The case was put at issue and much testimony was taken. With this testimony extant, and nearly three years after the commencement of the suit, on January 3, 1893, a document was filed in the papers of the cause, signed by the husband and by his solicitor. In substance the paper recited that, at the time of the commencement of the suit, the wife had in her hands a considerable amount of property and money belonging to the husband which was applicable to her maintenance, and that, when this sum was expended, the husband would feel it his duty to furnish further money to support the wife, whatever might be the result of the cause. That the husband was confident of making a successful defense to the suit, but that it seemed to him it was best for the sake of peace and to avoid scandal to put an end to the litigation by consenting to a decree in favor of the wife for a separate maintenance, the paper further stating:

cept the amount previously offered by the husband, although deeming the sum inadequate to her condition of life, "upon the decree finding that complainant was living separate and apart from defendant without fault on her part, being now promptly entered such as the said voluntary stipulation of the defendant justifies." No action appears to have been taken by the court upon these two papers except in so far as may be inferred from the statements which follow.

In May, 1893, the court entered an order referring the cause to a master to take further evidence as to the amount of alimony, etc., to be awarded, "and upon other issues herein than the question as to whether complainant, at the time of the commencement of this suit, was, and since that time has been and is, living separate and apart from her husband, the defendant, without her fault, said defendant having admitted upon the record herein, and now admitting in open court, that the complainant was living separate and apart from him without fault on her part."

ties. An exception on behalf of the husband, was taken to each and every finding of the decree, and sixty days were allowed to prepare a certificate of evidence.

It would seem from the certificate of evidence, which was made several months afterwards, that, on the settlement of the decree, a controversy arose as to its terms,-the wife requesting the court to state in the decree that all the charges made in the complaint and the amended complaint as to cruelty, adultery, etc., had been established by the proof; the husband insisting, to the contrary, that the charges had not been proven, and further asserting that it was not necessary to so find, because of his admission of record. The court said that it did not pass upon the question as to whether all the charges made in the complaint were true, because it regarded it as unnecessary "in view of the said paper of the defendant, filed herein January 3, 1893."

The husband prosecuted an appeal to the appellate court of Illinois for the first district. But before this appeal was perfected, and on August 31, 1897, he commenced in the superior court of San Diego, California, this suit against his wife for divorce. The marriage in 1855 and the residence in Chicago were alleged, but it was averred that ever since May 15, 1895, the plaintiff had been a resident of the state of California. The sole ground alleged for granting the divorce was wilful desertion by the wife in the month of February, 1890. The answer of the wife denied that the husband was a resident of California, and in a separate paragraph there was specially pleaded the pro

and the admission of the husband on the record therein as to the separation being without the fault of the wife, all of which, it was asserted, established by the thing adjudged that her living apart was justified and did not constitute desertion.

Nearly three years after the matter had been thus referred to the master the order of reference was amended nunc pro tunc, as of the date of the previous order, by substituting for the words "and now admitting in open court" the words "as by his written stipulation filed herein on January 3, 1893, and for the purpose of this trial only." A few months thereafter the master filed his report. Therein he stated his conclusions deduced from the evidence taken prior to 1894 on the subject of the right of the wife to her separate maintenance, and found, as a matter of fact, that her right was estab-ceedings and the decree of the Illinois court lished by the proof. He also found that the wife was entitled to a stated sum for her separate maintenance and an additional sum for the support of the children. Exceptions were filed to the report, which were heard by the court, and a final decree was rendered on July 26, 1897. It was recited, among other In the meanwhile, before the trial of the things, in this decree that the court, "doth cause, the appeal prosecuted in the Illifind that the said complainant, at the time nois case by the husband was decided against of the commencement of this suit, was liv-him in the appellate court, and he took an ing, and ever since that time has lived, and appeal to the supreme court of Illinois, in is now living, separate and apart from her which court the judgment was affirmed, with husband, the said defendant, without her a modification as to the amount of the alfault, and that the equities of this cause lowance for alimony, and the trial court are with the complainant." The decree changed the amount of its decree accordingawarded to the wife sums for her separately. The wife then, by an amended answer, maintenance and for the support of the children up to the time of their becoming of age and a further sum for the fees of the solicitors of the wife and other expenses of the litigation. The decree made no reference to the admission contained in the paper filed by the husband, nor was any statement made which limited the effect of the decree as a final adjudication of the rights of the par

again set up the decree in Illinois, as amended, as res judicata.

On the trial the wife introduced in evidence a certified copy of the record of the Illinois suit. The husband introduced, over the wife's objection and exception, a portion of the certificate of evidence, which had been prepared for the purpose of the appeal from the final decree in Illinois as originally en

tered. The court made findings of fact to | found it necessary to pass upon all the the effect that the parties had been married charges made in the complaint.

in Illinois, that the husband was a bona fide resident of California, and that, on the first day of February, 1890, the wife had deserted her husband without just cause. As a conclusion of law it was deduced that the husband was entitled to a divorce, but that the court was without power in any way to limit or affect the decree for separate maintenance rendered by the Illinois court. After the refusal of a new trial the wife appealed to the supreme court of California, and that court affirmed the decree. 140 Cal. 690, 74 Pac. 284.

The question is, Did the supreme court of California fail to give due faith and credit to the decree for separate maintenance rendered in favor of the wife in Illinois, which was pleaded by the wife as res judicata?

It is suggested in argument that that question cannot be passed upon, as the wife, besides pleading and relying upon the Illinois decree, defended on the merits, and by so doing waived the benefits of the alleged estoppel arising from the Illinois decree. The want of merit in the contention is at once demonstrated by the statement that the supreme court of the state of California, in its opinion in the cause, treated the question of estoppel by the Illinois judgment as being open, and actually determined it.

But the conclusion drawn by the court from these matters assumed that a decree for separate maintenance under the Illinois statute could have been a mere matter of consent, and did not require the ascertainment by the court of the facts made essential by the statute to justify such a decree. That this was a mistaken conception of the Illinois law has been clearly pointed out by the supreme court of that state. In Johnson v. Johnson, 125 Ill. 510, 16 N. E. 891, an appeal from a decree for separate maintenance, the court said (p. 514, N. E. p. 892):

"To maintain her bill, it was necessary for the complainant to show not only that she had good cause for living separate and apart from her husband, but also that such living apart was without fault on her part. At common law the husband was liable in an action at law at the suit of any person furnishing to the wife necessaries suitable to her condition in life, if the wife was residing apart from him because of his wilful and improper treatment of her, or by his consent. 2 Kent, Com. 146; Evans v. Fisher, 10 Ill. 571. No right of action existed in the wife; courts of equity refusing to take cognizance at her suit, and enforce the legal obligation of the husband to maintain her. 2 Story, Eq. Jr. § 1422. The statute was passed to remedy this defect in the law, and gave the right to the wife to maintain her bill for separate maintenance, but restricted the right to cases where the living separate and apart from the husband was without her fault. The 'fault' here meant and contemplated is a voluntary consenting to the separation, or such failure of duty contributes to a disruption of the marital or misconduct on her part as 'materially relation.' If she leave the husband volundid not constitute an estoppel in the courts tarily, or by consent, or if her misconduct of California. But we are of opinion that has materially induced the course of action on the part of the husband upon which she the premise upon which the supreme court relies as justifying the separation, it is not of California proceeded was a mistaken one, without her fault within the meaning of the and its conclusion based thereon was errone-law. No encouragement can be given to the ous, even if the correctness of the premise be conceded for the sake of the argument.

The supreme court of California decided that the Illinois decree was not conclusive in California as to the question of desertion, for the following reasons: That decree, the court held, was a consent decree, and being of that character it was not a bar in the state of Illinois. As it was held that the Illinois decree was only entitled in California, under the due faith and credit clause, to the effect which it would have in Illinois,

it was hence decided that the Illinois decree

living apart of husband and wife. The law and good of society alike forbid it. But a wife who is not herself in fault is not bound to live and cohabit with her husband if his

The conclusion of the supreme court of California, that the Illinois decree was solely based on the consent of the parties, conduct is such as to directly endanger her and was consequently not the result of the life, person, or health; nor where the husaction of the court, was based on the follow-band pursues a persistent, unjustifiable, and ing: 1. The paper filed by the husband on January 3, 1893. 2. The recital in the amended order of reference that the admission that the wife was without fault had been made for the purpose of the trial only. 3. The statement of the trial judge, made in the certificate of evidence, that, in view of the admission on the record, he had not

wrongful course of conduct towards her, which will necessarily and inevitably render her life miserable, and living as his wife unendurable. Incompatibility of disposition, occasional ebullitions of passion, trivial difficulties, or slight moral obliquities, will not justify separation. If the husband voluntarily does that which compels the wife to

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