Varick v. Smith & The Attorney General

The Chancellor.

This is an appeal from a decretal order of the late vice chancellor of the fifth circuit, overruling the demurrer of the defendant Smith to the complainant^ bill. The main questions presented by the bill are as to the *158 rights of the complainant as the riparian owner of .lands on the west side of the Oswego river; and as to the right of the the lessee of the state to divert waters, not wanted for the purposes of the public, to the injury, of the complainant as the owner of water privileges on the Oswego river below the state dam. ' Upon these questions, it seems to be useless for ' me to add to the very able and lucid opinion of the vice chancellor. It is unnecessary, and it would be improper to attempt, in this stage of the suit, to declare precisely what relief the complainant may be entitled to upon the final hearing of the cause ; as the case made by the bill may be materially affected by the answer and the proofs. As the case now stands, the com plain art t is clearly entitled to restrain the defendant Smith from diverting the water which naturally flows over the state dam, and which is not wanted for any public .purpose, from its natural course down the original bed of the river; whereby the mills and mill privileges of the complaint-ant., situated below the dam and upon his own premises, may be injured. The eightieth section of the title of the revised statutes relative to the canals, (1 R. S. 231,) does not appear to apply to such a case. The object of that provision of the statute was to give to the owner of mills, adjacent to a state dam, the benefit of a head of water created at the expense of the state, so far as the water was not wanted for state purposes ; upon the payment, by such mill owner, of a reasonable equivalent therefor. Such á head of water being created for the legitimate purposes of public improvement, no one has a right to tap the state dam, so as to draw off any portion of the artificial pond, without the consent of the legislature or its legally authorized agents. So far as the raising of the artificial pond, for the use of the public, has the effect, either wholly or in part, to divert the natural flow of the water, from the original bed of the stream below the dam, the law has made provision for compensating those who are injured thereby. But whatever remains of the stream, beyond what is wanted for the public improvement, and which continues to flow over the dam and down the original channel of the river, unquestionably belongs to the owners of water rights upon the margin of the stream below; in the. *159 same manner as if the state dam had not been erected. I had occasion in another case to say, that the right of eminent domain did not imply a right, in the sovereign power of the state, to take the property of one citizen and transfer it to another, where the public interest would be in no way promoted by such a transfer; even if a full compensation for such properly was awarded to the owner thereof. In this opinion I am fully sustained by the decision of the supreme court, in the recent case as to the extension of Albany Street in the city of New-York. ( 11 Wend. Rep. 149 .) The principles upon which forced sales of private property were compelled by the civil law, for the public good, were certainly as extended as any government can ever claim, consistently with the private rights of its citizens. And it is not pretended that, even under the arbitrary government of the Roman emperors, it was lawful or justifiable for the sovereign to take the property of one citizen and give it to another, where the public interest was not concerned in such transfer, (1 Domat's Civil Law, B. 1, tit. 2, § 13.) A recent English writer, "who admits the general right of the sovereign power to control or dispose of private property, paying a just compensation therefor, and to regulate and control the enjoyment of things before existing in common, considers a causeless or corrupt limitation of pre-existing rights as an abuse of the power. (Thomas’ Univ. Jurisp. 171.) Perhaps in England, where the power of parliament is said to be omnipotent, so far as the exercise of mere human power is concerned, there may be no remedy for such an abuse of power, where it is by a concurrent act of the three estates of the realm. But in a state which is governed by a written constitution, like ours, if the legislature should so far forget its duty, and the natural rights of an individual, as to take his private property and transfer it to another, where there was no foundation for a pretence that the public was to be benefitted thereby, I should not hesitate to declare that such an abuse of the right of eminent domain was an infringement of the spirit of the constitution; and, therefore, not within the general powers delegated by the people to the legislature. But while I deny to the legislative power the right thus to take private property for the mere pur *160 pose of transferring it to another, I admit that the two branch* es of the legislature, subject only to the qualified veto of the executive, are the sole judges as to the expediency of making police regulations interfering with the natural rights of our citizens, which regulations are not prohibited by the constitution ; and also as to the expediency of exercising the right of eminent domain for the purpose of making public improvements, either for the benefit of the inhabitants of the state generally, or of any'particular section thereof. In the present case, I am not prepared to say that any provision of the revised statutes, when properly construed, can be considered as an unconstitutional infringement of private rights; or that the claims set up by the defendant under this lease can be sustained, to their full extent, in conformity with the declared intention of the legislature, as contained in those statutes.

I think the objection for multifariousness is not well taken, A bill is not multifarious where it sets up one sufficient ground for equitable relief, and sets up another claim which, upon its face, contains no equity which can entitle the complainant to the interposition of the court, either for discovery or relief. The proper course for the defendants in such a case is to answer as to the first, and demur to the last for want of equity. Or he may answer as to both ; and make the objection, as to the want of equity in the last claim, at the hearing. Neither is a bill multifarious because two good causes of complaint, arising out of the same transaction, are joined in one suit, in which all the defendants are interested in the same claim of light; and where the relief asked for in relation to each is of the same general character. The attorney general appears to be a proper party to the suit, so far as the rights of the state are connected with any legitimate claims to relief against the defendant Smith. But even if he is an unnecessary party, it does not authorize Smith to demur to the bill on that account; unless there is some valid claim in equity against the attorney general as the representative of the state, in which the defendant Smith is in no way interested. Such a claim, if it could be sustained in this court, might render this bill multifarious. I am not aware, however, of any authority to sue the attorney general in this court, as the representative of the *161 Sights of the state; except where those rights are connected with the relief sought against some other defendant. (See Mitf. Pl., Edw. cd. 31, 101.)

As I am satisfied the complainant is entitled to some part cf the relief claimed, upon the case made by his bill, and that ¿he objection as to form taken by the demurrer cannot be sustained, the decretal order appealed from must be affirmed, with costs.