Kane v. Mayor of Baltimore

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from an order of the judge of the Superior court of Baltimore city. The case made by the bill may be thus stated. Á person of the name of Samuel D. Tonge had a leasehold interest in a piece of land in Baltimore county, through which flows a stream called “Jones’ Falls.” On this land and the stream a valuable merchant flour mill stood. ’ Under the Act of 1853, chapter 376, entitled, “An Act to supply the City of Baltimore with pure water,” the city caused that part of the land constituting the bed of the stream to be condemned, and the amount of the condemnation money was paid to those to whom it was decided to belong. Tonge having taken the benefit of the insolvent laws, his trustee exposed for sale the interest which still remained to his estate after the condemnation, and the appellant became the purchaser thereof for the sum of ^8500. The bill alleges that immediately after the purchase he was put in possession of the property, and up to the period of the commission of the acts complained of, he was in the undisturbed and peaceable enjoyment of the same, using it for the manufacture of flour, for the grinding and delivery of which he is under heavy contracts. It is also alleged that James S. Suter, water-engineer to the Mayor and City Council of Baltimore, claiming to act under and by virtue of the aforesaid Act of Assembly, and the ordinance of said corporation for supplying the city with pure water, entered upon the dam belonging to the mill, then in the possession and use of the complainant, and forcibly and violently, and against his will and consent, opened and destroyed the sluice-gate in the dam, and thereby let off and discharged the water from the mill-dam, so that the mill can no longer be used, as before, for the manufacture of flour; and further, that since the sluice was opened and destroyed, the engineer has commenced and is now prosecuting the actual destruction of the whole of the dam, cutting away the wood-work and blowing up the abutments, so that when its destruction shall be completed it will be incapable -of being rebuilt, as before, the present abutments being natural rocks of immense size, which *248 cannot be equally well replaced by any artificial structure. The bill states that a suit has been instituted against the dedefendants, in which will be tried and adjudicated the rights of the respective parties. It avers, that the only use which the complainant makes of the water is, to cause it to pass over his water-wheel instead 'of passing over the breast of the dam, and that such use is made without the smallest impairment of its quantity, or pollution of its quality, and in proof that such use of the water of Jones’ Falls is not injurious to the rights of the Mayor and City Council, the corifplainant avers, that the same use is made of said water by all the mills on the said stream, both above and below Iris mill, with the knowledge arid consent of the Mayor and City Council, their engineer and agents-, and no objection lias ■been made, except in his case. The bill states the insolvency of Suter, and suggests, that it may be probable, that as the Mayor and City Council of Baltimore is a -corporation 'confined, in the exercise of its corporate powers, within specified limits, it may not be liabl-e for acts done outside of those limits. To this is added, that as'the trespass is continuing in its nature and goes to the destruction of the dam as such, the defendants ought to be restrained from further acts of trespass until the suit at law shall have been determined, and be compelled to refrain from interfering with such use by the •complainant of the xoater of Jones’ Falls, for running his nvill, as does not interfere with the use of the same by the Mayor and City Council of Baltimore, for the supplying of the city until pure water. An injunction was accordingly ordered. The answers of the defendants exhibit no facts ifi response •contradictory to those alleged- in the bill, but claim the legal right to do what has been done, and what is contemplated to to be done, by virtue of the Act of Assembly, the ordinance of the city of Baltimore, and the condemnation. Considerable proof was taken as to the boundaries of the land condemned, and the various water powers and their present uses on Jones’ Falls. There is not sufficient evidence in the record, going to show, that the use by the complainant of the water interferes in any manner with the introduction of pure *249 water into the city. The new water works are not now completed, and, according to the present plan of their construction, the water to be conveyed into the city is to be withdrawn from the stream at a point considerably higher up than the location of the complainant’s mill.

The claim of the city depends upon the construction of the 46th section of the 3rd Article of the Constitution of the State, the Act of Assembly of 1853, chapter 376, and the condemnation under the inquisition. On the part of the city, it is contended, that the condemnation of the land was in absolute fee-simple, and that on ratification of the finding of the jury and payment of the money,, the city is entitled to use it, and the water flowing over it, in such manner and for such purposes as to it may seem proper and judicious. To this extent the pretension must go, and be sustained, or it cannot avail in this case, as it is presented to us.

The clause in the Constitution is in these words:

“The Legislature shall enact no law authorising private property to be taken for public use without just compensation as agreed upon between the parties, or awarded by a-, jury, being first paid, or tendered, to the party entitled to such compensation.”

The Act of 1853, chapter 376, authorises the city, by purchase, or, in case of inability to purchase with consent of the owner, to acquire title by condemnation of a jury, and the tender of, or payment of the valuation; but this authority is not given to the city for all purposes, but for “the purpose of conveying ivater into the said city, for the use of said city, and for the health and convenience of the inhabitants there of.” Under this privilege the city can acquire a right to the use of the water in perpetuity, but the use to which it is to be applied must be the one specified. In our opinion it is not competent for the Legislature to confer on the city of Baltimore, or other corporation, the power to take private property for any use but a public one; and the particular public use, in this case, is described fully in the Act of Assembly, and is observed in the finding of the jury, “the conveying water into said city.''

*250 The Legislature could not confer on the city a larger power than it possessed. The right of eminent domain, which under the Act of 1853, was, in part, conferred upon the city, cannot be more extensive than as it existed before the grant. The State has not, and therefore cannot confer, a power to take private property for any but a public use. In our opinion it has not done so in the present instance.

We think the complainant has the right to use the water in the manner it has been customary to use it at his mill, so far as that use may not interfere with the use of the same by the Mayor and City Council for supplying the city with pure water.

In the argument of this cause, some stress has been laid upon the decree passed by the Circuit court, which appears in the record. That decree was passed in the interpleader suit instituted by the Mayor and City Council, for the purpose of determining the respective rights of the parties in interest, to the money awarded by the inquisition. The decree in its terms declares that the Mayor and City Council of Baltimore “is entitled to a fee-simple estate in the property in the condemnation mentioned.”

In our opinion, the decree did not alter or enlarge the rights of the city, acquired under the condemnation. That conferred upon the city, in perpetuity,- the use and occupation of the stream, for the purpose mentioned in the Act, but left in Tonge “all such use of it as did not injuriously interfere therewith-.” This latter right, so far as it is consistent with the full and complete accomplishment of the purpose mentioned, could not be embraced within the condemnation. From these views, it will be apparent, that we are of opinion, the order dissolving the injunction was erroneous and ought to be reversed, and an order passed continuing the injunction.

These views are fully sustained by the following cases: Albany Street Case, 11 Wendell, 149 ; Dunn vs. City of Charleston, Harper's Law Rep., 189; The People vs. White, 11 Barbour, S. C. Rep., 26, and Varick vs. Smith, 5 Paige, 137, 146, 147.

*251 (Decided March 5th, 1860.)

Believing the principles adopted in these cases to be appropriately applicable to the one before us, we do not deem it important to inquire how far it may be true, as has been supposed, that there are cases in New York in conflict with those to which we have referred.

Order reversed with costs, and injunction continued,.