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that, although the use of water in the state that purpose. The general situation and of Utah for the purposes of mining or ir- amount of the arid land or of the mines rigation or manufacturing may be a public themselves might also be material, and what use where the right to use it is common to proportion of the water each owner should the public, yet that no individual has the be entitled to; also the extent of the popuright to condemn land for the purpose of lation living in the surrounding country, conveying water in ditches across his neigh- and whether each owner of land or mines bor's land, for the purpose of irrigating his could be, in fact, furnished with the necesown land alone, even where there is, as in sary water in any other way than by the this case, a state statute permitting it. condemnation in his own behalf, and not
In some states, probably in most of them, by a company, for his use and that of others. the proposition contended for by the plain- These, and many other facts not necestiffs in error would be sound. But whether sary to be set forth in detail, but which can a statute of a state permitting condemna- easily be imagined, might reasonably be retion by an individual for the purpose of ob- garded as material upon the question of pubtaining water for his land or for mining lic use, and whether the use by an indishould be held to be a condemnation for a vidual could be so regarded. With all of public use, and, therefore, a valid enact these the local courts must be presumed to ment, may depend upon a number of con- be more or less familiar. This court has siderations relating to the situation of the stated that what is a public use may frestate and its possibilities for land cultiva- quently and largely depend upon the facts tion, or the successful prosecution of its surrounding the subject, and we have said mining or other industries. Where the use that the people of a state, as also its courts, is asserted to be public, and the right of the must, in the nature of things, be more faindividual to condemn land for the purpose miliar with such facts, and with the necesof exercising such use is founded upon or is sity and occasion for the irrigation of the the result of some peculiar condition of the lands, than can any one be who is a stranger soil or climate, or other peculiarity of the to the soil of the state, and that such knowl. state, where the right of condemnation is edge and familiarity must have their due asserted under a state statute, we are al- weight with the state courts. Fallbrook ways, where it can fairly be done, strongly Irrig. District v. Bradley, 164 U. S. 112, 159, inclined to hold with the state courts, when 41 L. ed. 369, 388, 17 Sup. Ct. Rep. 56. It they uphold a state statute providing for is true that in the Fallbrook Case the quessuch condemnation. The validity of such tion was whether the use of the water was a statutes
may sometimes depend upon public use when a corporation sought to many different facts, the existence of take land by condemnation under a state which would make a public use, even statute, for the purpose of making reservoirs by an individual, where, in the absence and digging ditches to supply landowners of such facts, the use would clearly with the water the company proposed to obbe private. Those facts must be general, tain and save for such purpose. This court notorious, and acknowledged in the state, held that such use was public. The case and the state courts may be assumed to be did not directly involve the right of a single exceptionally familiar with them. They are individual to condemn land under a statute not the subject of judicial investigation as providing for that condemnation. to their existence, but the local courts know We are, however, as we have said, disand appreciate them. They understand the posed to agree with the Utah court with resituation which led to the demand for the gard to the validity of the state statute enactment of the statute, and they also ap- which provides, under the circumstances preciate the results upon the growth and stated in the act, for the condemnation of prosperity of the state which, in all prob- the land of one individual for the purpose ability, would flow from a denial of its va: of allowing another individual to obtain lidity. These
These are matters which might water from a stream in which he has an properly be held to have a material bearing interest, to irrigate his land, which other. upon the question whether the individual wise would remain absolutely valueless. use proposed might not in fact be a public But we do not desire to be understood by one. It is not alone the fact that the land this decision as approving of the broad is arid and that it will bear crops if irri- proposition that private property may be gated, or that the water is necessary for the taken in all cases where the taking may purpose of working a mine, that is material; promote the public interest and tend to deother facts might exist which are also ma-velop the natural resources of the state. We terial,—such as the particular manner in simply say that in this particular case, and which the irrigation is carried on or pro- upon the facts stated in the findings of the posed, or how the mining is to be done in a court, and having reference to the condiparticular place where water is needed for 'tions already stated, we are of opinion that the use is a public one, although the taking it was rendered by consent, where to assume of the right of way is for the purpose simply
that it was a consent decree disregards the
rule of public policy of Illinois and the exof thereby obtaining the water for an indi.
press terms of the decree, and gives to the vidual, where it is absolutely necessary to
ex parte stipulation of the husband that the enable him to make any use whatever of his wife was living separate and apart from him land, and which will be valuable and fertile without her fault the effect of a consent to the only if water can be obtained. Other land
decree, while the Illinois courts regarded it
as an admission concerning the state of the owners adjoining the defendant in error, if
proof on the record, which, though rendering any there are, might share in the use of the
it unnecessary for the court to analyze the water by themselves taking the same pro- proof, did not deprive it of the power to make ceedings to obtain it, and we do not think it a judicial finding of the fact. necessary, in order to hold the use to be a 2. A decree for the separate maintenance of the public one, that all should join in the same
wife in a suit brought under Ill. Laws 1877,
p. 115, is not less res judicata in Illinois on proceeding, or that a company should be
the question of her desertion because it was formed to obtain the water which the indi
rendered by consent, where the appellate vidual landowner might then obtain his por- court and the supreme court of that state tion of from the company by paying the have affirmed the decree and the finding agreed price, or the price fixed by law.
therein made that the wife was living sepa
rate and apart from her husband without The rights of a riparian owner in and to
fault on her part. the use of the water flowing by his land
3. A decree in favor of the wife in a suit for are not the same in the arid and mountain
her separate maintenance under Ill. Laws ous states of the West that they are in the 1877, p. 115, authorizing such relief where states of the East. These rights have been the wife is living separate and apart from altered by many of the Western states by
her husband without her fault, is conclusive their constitutions and laws, because of the
upon the husband in the courts of California
on the issue whether the same separation totally different circumstances in which
constitutes wilful desertion on her part. their inhabitants are placed, from those that exist in the states of the East, and such
[No. 222.] 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
1905. mining and the cultivation of an otherwise
N ERROR to the Supreme Court of the court must recognize the difference of climate and soil, which render necessary which affirmed a judgment of the Superior these different laws in the states so situated. Court of San Diego County, in that state,
We are of opinion, having reference to in favor of the husband in an action for the above peculiarities which exist in the divorce on the ground of desertion, in which state of Utah, that the statute permitting an Illinois decree for the separate mainthe defendant in error, upon the facts aptenance of the wife was pleaded as res pearing in this record, to enlarge the ditch, judicata. Reversed and remanded for furand obtain water for his own land, was ther proceedings. within the legislative power of the state,
See same case below, 140 Cal. 690, 74 Pac. and the judgment of the state court affirm- 284. ing the validity of the statute is therefore
The facts are stated in the opinion. affirmed.
Messrs. Pliny B. Smith and John S.
Miller for plaintiff in error. Mr. Justice Harlan and Mr. Justice Mr. William H. Barnuin for defendant Brewer dissented.
valueless soil, by means of irrigation. This I^State of California to review a judgment
Mr. Justice White delivered the opinion (198 U. S. 317)
of the court: ADELAIDE M. HARDING, Plff. in Err., The law of Illinois (Laws of Illinois,
1877, p. 115) provided as follows: GEORGE F. HARDING.
“That married women who, without their
fault, now live or hereafter may live sepaJudgments—full faith and credit-consent rate and apart from their husbands, may
decree-conclusiveness of decree for wife's have their remedy in equity in their own separate maintenance on the issue of her names, respectively, against their said husdesertion.
bands for a reasonable support and main
tenance while they so live or have so lived 1. An Illinois decree for the separate mainte
nance of the wife cannot be denied conclusive separately and apart; and in determining ness in the courts of another state on the the amount to be allowed the court shall question of her desertion, on the theory that I have reference to the condition of the par ties in life, and the circumstances of the re- for separate maintenance shall be entered in spective cases; and the court may grant al- favor of the plaintiff without finding or trial lowance to enable the wife to prosecute her of the issue in this case. That this consent suit, as in cases of divorce.”
is not collusive is sufficiently shown by the On February 3, 1890, Adelaide M. Hard- length and character of the litigation. I ing filed her bill in the circuit court of the further offer and stand ready to make such county of Cook against her husband, George other or further or different stipulation by F. Harding
an amendment of the pleadings or otherwise, It was alleged that the parties were resi- as may, in the opinion of your honor, be dents of the city of Chicago. In substance, required to make it unnecessary for the in the bill and an amendment, it was
an amendment, it was court to hear and decide upon the issues in charged that, without her fault, and in con- evidence in this case after a long and exsequence of the cruel treatment of her hus- pensive hearing. To this end I declare my band, and of his adultery, the plaintiff had willingness to stipulate, and I do hereby been obliged to live apart from him. It was stipulate, that the plaintiff, at the time of prayed that the court decree that she was the commencement of this suit, was living so living apart without her fault, that it and ever since has been living separate and would award her the custody of certain of apart from her husband without her fault, the children of the marriage, and that the and may take a decree with my consent for defendant be decreed to provide for the sepa- such sum as may be reasonable and just for rate maintenance of the complainant and her separate maintenance. This is the same the support of the children. The answer and offer which I have made by way of an atan amendment thereto admitted the mar- tempt at compromise ever since the comriage, the birth of the children, and the resi- mencement of this suit, in which effort at dence in Chicago, denied the charges of compromise I have not hesitated to offer cruelty and other misconduct, and averred double the amount that, in my opinion, that the complainant was living apart should be allowed for her separate maintesolely through her own fault, and that she nance by the court.” had refused to return after repeated re- The wife, on January 17, 1893, filed a quests, which were reiterated in the answer. counter statement. She in substance de
We shall hereafter, as far as possible, re- clared that she had no previous knowledge of fer to the parties to that litigation, who are the intention of her husband to file the the parties to this suit, as the wife and the paper which he had submitted to the court; husband, respectively.
that she had always been confident of the The court by an interlocutory order, fixed justice of her cause and of maintaining the a sum to be paid by the husband for the fees same, and that the testimony then taken in of the solicitors of the wife, for the main the cause gave her great certainty of the estenance of the wife during the pendency of tablishment of her rights; that she had althe cause, and for the support of the minor ways been willing to adjust the amount to children.
be allowed for her separate maintenance, The case was put at issue and much provided there was a "finding and decree of testimony was taken. With this testimony this court thereon that she was, at the time extant, and nearly three years after the of the filing of the bill herein, living sepacommencement of the suit, on January 3, rate and apart from the defendant without 1893, a document was filed in the papers of fault on her part, and has been so living the cause, signed by the husband and by his ever since.” The statement then referred to solicitor. In substance the paper recited certain negotiations which had been pending that, at the time of the commencement of between the husband and wife on the subject the suit, the wife had in her hands a con- of the amount of separate maintenance to be siderable amount of property and money be allowed, enumerated previous offers made by longing to the husband which was applica- the husband on this subject, which she had ble to her maintenance, and that, when this been unwilling to accept, because the hussum was expended, the husband would feel band had insisted on either the dismissal of it his duty to furnish further money to her suit, a decree in his favor, or an agreesupport the wife, whatever might be the re- ment which would not preclude him from sult of the cause. That the husband was suing for a divorce for desertion arising confident of making a successful defense to from her having separated from him. It the suit, but that it seemed to him it was was then stated, in substance, that, as in. best for the sake of peace and to avoid scan.terpreted by the wife, the paper filed by the dal to put an end to the litigation by con- husband waived the conditions which he had senting to a decree in favor of the wife for previously insisted upon, and assented to a a separate maintenance, the paper further decree finding that the separation was withstating:
out her fault, and she was willing, for the Hence, I give my consent that a decree sake of preventing further scandal, to accept the amount previously offered by the ties. An exception on behalf of the husband, husband, although deeming the sum inade- was taken to each and every finding of the quate to her condition of life, “upon the de- decree, and sixty days were allowed to precree finding that complainant was living pare a certificate of evidence. separate and a part from defendant without It would seem from the certificate of evifault on her part, being now promptly en-dence, which was made several months aftertered such as the said voluntary stipulation wards, that, on the settlement of the decree, of the defendant justifies.” No action ap- a controversy arose as to its terms,—the pears to have been taken by the court upon wife requesting the court to state in the dethese two papers except in so far as may be cree that all the charges made in the cominferred from the statements which follow. plaint and the amended complaint as to
In May, 1893, the court entered an order cruelty, adultery, etc., had been established referring the cause to a master to take fur- by the proof; the husband insisting, to the ther evidence as to the amount of alimony, contrary, that the charges had not been etc., to be awarded, “and upon other issues proven, and further asserting that it was herein than the question as to whether com- not necessary to so find, because of his adplainant, at the time of the commence- mission of record. The court said that it did ment of this suit, was, and since that not pass upon the question as to whether time has been and is, living separate and all the charges made in the complaint were apart from her husband, the defendant, true, because it regarded it as unnecessary without her fault, said defendant having ad “in view of the said paper of the defendant, mitted upon the record herein, and now ad-filed herein January 3, 1893." mitting in open court, that the complainant The husband prosecuted an appeal to the was living separate and apart from him appellate court of Illinois for the first diswithout fault on her part."
trict. But before this appeal was perfected, Nearly three years after the matter had and on August 31, 1897, he commenced in: been thus referred to the master the order the superior court of San Diego, California, of reference was amended nunc pro tunc, as this suit against his wife for divorce. The of the date of the previous order, by substi- marriage in 1855 and the residence in Chituting for the words "and now admitting in cago were alleged, but it was averred that open court” the words “as by his written ever since May 15, 1895, the plaintiff had stipulation filed herein on January 3, 1893, been a resident of the state of California. and for the purpose of this trial only.” A The sole ground alleged for granting the few months thereafter the master filed his divorce was wilful desertion by the wife in report. Therein he stated his conclusions de the month of February, 1890. The answer of duced from the evidence taken prior to 1894 the wife denied that the husband was a resion the subject of the right of the wife to dent of California, and in a separate paraher separate maintenance, and found, as a graph there was specially pleaded the promatter of fact, that her right was estab- ceedings and the decree of the Illinois court lished by the proof. He also found that the and the admission of the husband on the wife was entitled to a stated sum for her record therein as to the separation being separate maintenance and an additional sum without the fault of the wife, all of which, for the support of the children. Exceptions it was asserted, established by the thing were filed to the report, which were heard adjudged that her living apart was justified by the court, and a final decree was rendered and did not constitute desertion. 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 separate ly. The wife then, by an amended answer, maintenance and for the support of the chil- again set up the decree in Illinois, as dren up to the time of their becoming of amended, as res judicata. age and a further sum for the fees of the On the trial the wife introduced in evisolicitors of the wife and other expenses of dence a certified copy of the record of the the litigation. The decree made no reference Illinois suit. The husband introduced, over to the admission contained in the paper filed the wife's objection and exception, a portion by the husband, nor was any statement made of the certificate of evidence, which had been which limited the effect of the decree as a prepared for the purpose of the appeal from final adjudication of the rights of the par-' the final decree in Illinois as originally entered. 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 But the conclusion drawn by the court resident of California, and that, on the first from these matters assumed that a decree day of February, 1890, the wife had desert- for separate maintenance under the Illinois ed her husband without just cause. As a statute could have been a mere matter of conclusion of law it was deduced that the consent, and did not require the ascertainhusband was entitled to a divorce, but that ment by the court of the facts made essenthe court was without power in any way to tial by the statute to justify such a decree. limit or affect the decree for separate main. That this was a mistaken conception of the tenance rendered by the Illinois court. After Illinois law has been clearly pointed out by the refusal of a new trial the wife appealed the supreme court of that state. In Johnson to the supreme court of California, and that v. Johnson, 125 Ill. 510, 16 N. E. 891, an court affirmed the decree. 140 Cal. 690, 74
140 Cal. 690, 74 appeal from a decree for separate maintePac. 284.
nance, the court said (p. 514, N. E. p. 892): The question is, Did the supreme court of
"To maintain her bill, it was necessary California fail to give due faith and credit for the complainant to show not only that to the decree for separate maintenance ren
she had good cause for living separate and dered in favor of the wife in Illinois, which apart from her husband, but also that such was pleaded by the wife as res judicata? living apart was without fault on her part.
It is suggested in argument that that At common law the husband was liable in question cannot be passed upon, as the wife, an action at law at the suit of any person besides pleading and relying upon the Illi- furnishing to the wife necessaries suitable nois decree, defended on the merits, and by to her condition in life, if the wife was reso doing waived the benefits of the alleged siding apart from him because of his wilful estoppel arising from the Illinois decree. and improper treatment of her, or by his The want of merit in the contention is at consent. 2 Kent, Com. 146; Evans v. Fisher, once demonstrated by the statement that 10 Ill. 571. No right of action existed in the supreme court of the state of California, the wife; courts of equity refusing to take in its opinion in the cause, treated the ques-cognizance at her suit, and enforce the legal tion of estoppel by the Illinois judgment as obligation of the husband to maintain her. being open, and actually determined it. 2 Story, Eq. Jr. § 1422. The statute was
The supreme court of California decided passed to remedy this defect in the law, that the Illinois decree was not conclusive and gave the right to the wife to maintain in California as to the question of desertion, her bill for separate maintenance, but refor the following reasons: That decree, the stricted the right to cases where the living court held, was a consent decree, and being separate and apart from the husband was of that character it was not a bar in the without her fault. The 'fault' here meant state of Illinois. As it was held that the and contemplated is a voluntary consenting Illinois decree was only entitled in Califor- to the separation, or such failure of duty nia, under the due faith and credit clause, contributes to a disruption of the marital
or misconduct on her part as 'materially to the effect which it would have in Illinois, relation. If she leave the husband volunit was hence decided that the Illinois decree did not constitute an estoppel in the courts tarily, or by consent, or if her misconduct did not constitute an estoppel in the courts has materially induced the course of action of California. But we are of opinion that
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 living apart of husband and wife. The law conceded for the sake of the argument. The conclusion of the supreme court of wife who is not herself in fault is not bound
and good of society alike forbid it. But a California, that the Illinois decree was to live and cohabit with her husband if his 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 wrongful course of conduct towards her, January 3, 1893. 2. The recital in the which will necessarily and inevitably render amended order of reference that the admis- her life miserable, and living as his wife sion that the wife was without fault had unendurable. Incompatibility of disposition, been made for the purpose of the trial only occasional ebullitions of passion, trivial dif3. The statement of the trial judge, made in ficulties, or slight moral obliquities, will not the certificate of evidence, that, in view of justify separation. If the husband volunthe admission on the record, he had not Itarily does that which compels the wife to