Jordan v. Woodward

Rick, J.

From the bill and accompanying documents, including the plan referred to at the argument, it appears that, in 1840, Seth Tisdale and his associates were possessed of a mill privilege on Union river, in the town of Ellsworth, upon which they erected what is now known as the “Five Saw Dam,” and constructed thereon three single and one double saw-mill. The single saw-mill now owned by the defendant Woodward, is located on that dam, upon the west side of the river; the two remaining single mills, owned by the plaintiffs, and the double mill, are on the same dam, but on the east side of the river. The title to those several mills have passed through sundry mesne conveyances to the present proprietors, each saw being entitled, according to the terms of the several deeds, to one-fifth of the water power created by the dam.

On the west side of the river, and immediately above the dam, the land was owned by the defendant Melvin, and constitutes a considerable portion of the basin for the millpond.

This pond has heretofore been used by the owners of the several mills on this dam for booming logs, and has been , apportioned among the different proprietors of the mills in such way as was supposed would accommodate the different *321 mills, without particular reference to the proprietorship of the soil under the water.

One of the defendants owning the mill on the west side of the river and the other being the riparian proprietor of the land on the west side of the pond, claim the right to \>ccupy, for the purpose of booming logs, the whole of this part of the mill-pond, except certain projecting points which overlies the land of the defendant Melvin, and have commenced sinking piers for the purpose of erecting a boom which will include such part of the pond. This boom, if completed, as intended by the defendants, will include a portion of the pond, now, and heretofore, occupied by the boom of the plaintiffs, used to hold logs to be manufactured at their mills.

The question presented for decision is, whether the riparian proprietor can use his lands, when overflowed by water raised by a mill-dam, for the purpose of booming logs, and may, by constructing a boom with piers thereon, exclude the general owner of the dam, by which the, water is raised, and also fill up a portion of such pond, with his piers or otherwise.

Section 1 of c. 128, K. S., provides that any man may erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon the terms and conditions, and subject to the regulations expressed in that chapter. The fourth section provides that the height to which the water may be raised, and the length of time during which it may be kept up in each year, shall bo liable to be restricted and regulated by the verdict of a jury or report of commissioners. The fifth, and following sections, provide the mode by which any person sustaining damages in his lands by their being overflowed by a mill-dam, may obtain compensation.

The plaintiffs contend that as an incident to the right given them by the statute to raise the water for working their mills, is the right to use the water thus raised, and the land under it, for all purposes which will contribute to the con *322 venient and profitable operation of their mills; and that thus they have acquired the right to erect and maintain booms in which to secure logs designed for manufacture at such mills, in any part of the pond thus raised, irrespective of the ownership of the lands overflowed, and upon which such booms are erected.

In direct terms the power is conferred upon the mill owner, by the statute, to erect and maintain a dam to raise water for working his mills, and incidental to this power is the right to overflow the lands of other persons, or to speak more accurately, this power of building dams may be exercised, though incident thereto, the lands of other persons be overflowed and injured. This right is in derogation of the common law, and the natural right of the citizen, and should not therefore be extended by implication. The liability of the mill owner, in case he exercises the power conferred by the statute, is the payment of damages, occasioned by overflowing the lands of the riparian proprietor. Palmer Co. v. Ferrill, 17 Pick. 58 .

The right of the riparian proprietor is to obtain compensation in damages, for the injuries sustained in his lands, by their being overflowed, and nothing -more. Thus the liability to pay damages by one party, and the right of compensation by the other, are commensurate, one being the counterpart of the other.

The plaintiffs further contend, that under the mill Act, they have acquired. the right to the use of the basin which contains the water raised by their dam, and that no person can lawfully place any obstruction therein by which its capacity to contain water will be in any degree diminished. There are expressions in the opinion of Putnam, J., in the case of the Boston & Roxbury Mill Co. v. Newman, 12 Pick. 467 , which appear to sustain this position. The peculiar facts and circumstances in that case, may, and probably did authorize the conclusions to which the Court arrived. But some, expressions of the learned Judge in that opinion, 'introduced by way of argument and illustration, if relied *323 upon as principles of general application, may well challenge consideration.

Private property shall not bo taken for public uses, without just compensation; nor unless the public exigencies require. Const., Art. 1, § 21.

The private property of one citizen cannot be taken and given to another citizen, for private uses. Except for public uses, private property may not be taken by the dominant power of the State; nor for public uses without just compensation; nor even then, unless the public exigencies require. That is to say, there must be a pressing public necessity, to justify the invasion of private right by the superior power of the State, and this exercise of power over private property, when justified by the public necessities, cannot be extended beyond what the public exigencies require.

The mill Act, as it has existed in this State, pushes the power of eminent domain to the very verge of constitutional inhibition. If it were a new question, it might well be doubted whether it would not be deemed to be in conflict with that provision of the constitution cited above.

In the early history of this country, the erection of mills was deemed matter of great public convenience and necessity, and as such deserving the special protection of the legislative power. There were then few mills in the country, and little capital with which to construct them, while land was abundant, and to a great extent unoccupied, and comparatively of little value. Hence the origin of the policy, and the grounds of its justification or excuse.

But the reasons in which this policy originated have long since ceased to exist. Private capital has largely accumulated, and now seeks investment in mills of various descriptions, or in other enterprises for private gain. That the existence of water-mills is matter of public convenience at this day, is undeniable; so too is the existence of the shop of the smith, the store of the grocer, the house of the inn-holder, and a great variety of business enterprises in which our *324 citizens employ their labor and capital. In fact' there is no branch of lawful business which may not contribute to the public good,, and for which'there may not, to a certain extent, exist a public necessity. Yet to authorize the appropriation of private property for all these various purposes, would be destructive to private rights, and unsettle the tenure by which property is holdén.

Strictly speaking, private' property can’ only be said to have been taken for public uses’when it has been so_ appropriated’that the public have certain and weU défiried rights to that use se.cured,' as the right to use the public highway, the turnpike, the public ferry, .the railroad, and the like. But when it is so appropriated that the" public have no rights to its use secured, it is difficult to perceive how such an appropriation can be denominated a public use.

We do not intend to question the authority of the existing mill Act óf this State. From its great antiquity, and the long acquiescence of our citizens' in its provisions, it must be deemed to be the settled law of the State. Nor are we inclined to exteiid its’ peculiar provisions by implication.It is not believed that .there is any existing public exigency which requires this Court to determine, that the proprietors of the many thousands of acres of land, in this State, now overflowed’ by the operation of mill-dams, should be prohibited from all beneficial use of such lands' by which the capacity of mill-ponds may be diminished; nor that the sinking of a pier, or thé driving of a pile' in a’ mill-pond, by-the owner of the land overflowed, is an unlawful act.

Should it be said, that under this construction the capacity of the basins’ of mill-ponds may be materially diminished, the answer is, that from the nature of the case there is little danger to be apprehended from that source;’ that it does not restrict the right of the mill-owner to' raise his head of water; and if by the exclusion of the water from the land of the riparian proprietor his damages should be diminished, the mill-owner may be relieved to that extent, under the provisions of c. 126, R. S.

*325 It not appearing from the allegation in the plaintiff’s bill, that the several acts of the defendants, of which complaint is made, were not all done and performed upon their own land, nor that any of said acts are in contravention of any law of this State, no sufficient cause is shown for the intervention of this Court, as a court of equity, by injunction or otherwise.

Bill dismissed.

Tenney, J., concurred in the result.