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and they were never adjudged to be invalid anywhere until since 1870, and then in three states only, and for incompatibility with their respective consti. tutions. Loughbridge v. Harris, (1871,) 42 Ga. 500; Tyler v. Beacher, (1871,) 44 Vt. 648; Ryerson v. Brown, (1877,) 35 Mich. 333. The earlier cases in Tennessee, Alabama, and New York, containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerg. 40; Memphis City R. Co. v. Memphis, 4 Cold. 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 Ala. 288; Hay v. Cohoes Co. 3 Barb. 44, 47, and 2 N. Y. 159. The principle objects, no doubt, of the earlier acts were grist-mills, and it has been generally admitted, even by those courts which have entertained the most restricted view of the legislative power, that a grist-mill which grinds for all comers, at tolls fixed by law, is for a public use. See, also, Blair v. Cuming Co. 111 U. S. 363; S. C. 4 SUP. Cr. REP. 449. But the statutes of many states are not so limited, either in terms or in the usage under them. In Massachusetts, for more than half a century, the mill acts have been ex. tended to mills for any manufacturing purpose. Mass. St. 1824, c. 153; Wolcott Woollen Manuf'ğ Co. v. Upham, 5 Pick. 292; Palmer Co. v. Ferrill, 17 Pick. 58, 65. And throughout New England, as well as in Pennsylvania, Virginia, North Carolina, Kentucky, and many of the western states, the statutes are equally comprehensive.
882 et seg
St. 1838, c. 1; Rev. St. 1842, C. 48, art. 6; Rev. St. 1852, pt. 2, art. 41; Rev. St. 1881, &
Iowa. Terr. St. 1839, p. 343, 1843, p. 437; St. 1855, c. 92; Rev. St. 1860, tit. 11, c. 64, art. 4; Code 1873, tit. 10, c. 1; Code 1880, tit. 10, c. 1.
KANSAS. St. 1867, C. 87; Gen. St. 1868, c. 66; Comp. Laws 1879, c. 66.
KENTUCKY. St. February 22, 1797, 1 Litt. St. 606; 2 Litt. & S. Dig. 1822, p. 933 ; Rev. St. 1852, c. 67; Gen. St. 1883, c. 77.
MAINE. St. 1821, c. 45; Rev. St. 1840, c. 126; Rev. St. 1857, C. 92; Rev. St. 1871, c. 92; Rev. St. 1883, c. 92.
MARYLAND. Prov. St. 1719, c. 15, Bacon's Laws 1765, and 1 Kilty's Laws. Repealed by St. 1832, c. 56.
MASSACHUSETTS. Prov. St. 1714, c. 15, 1 Prov. Laws (State Ed.) 729, and Anc. Chart. 404; St. 1795, c. 74, passed February 27, 1796; 1824, c. 153, February 26, 1825; 1825, c. 109, February 28, 1826; 1829, c. 122, March 12, 1830; Rev. Št. 1836, c. 116; Gen. St. 1860, C. 149; Pub. St. 1882, c. 190.
MICHIGAN. Terr. St. 1824, 1828, 2 Terr. Laws, 192, 699; St. 1865, a 304; Comp. Laws 1872, c. 221; St. 1873, c. 196.
MINNESOTA. Terr. St. 1857, Pub. St. 1849–58, c. 129; Rev. St. 1866, c. 31; Gen. St. 1878 c. 31.
MISSISSIPPI. Terr. St. 1811, 1812, p. 344; Rev. Code 1824, C. 65; Rev. Code 1871, c. 34; Rev. Code 1880, c. 27.
MISSOURI. St. 1823, 2 Rev. St. 1825, p. 587; St. 1835, p. 405; Rev. St. 1845, c. 121 ; Rev. St. 1855, c. 112; Gen. St. 1865, c. 101 ; Wagner's St. 1872, c. 98 ; Rev. St. 1879, c. 132.
NEBRASKA. Terr. St. 1861-62, p. 71; Rev. St. 1866, c. 36; Gen. St. 1873, c. 44; Comp. St. 1881, c. 57.
NEW HAMPSHIRE. Prov. St. 1718, Prov. Laws, (Ed. 1771,) c. 60; St. 1868, c. 20; Gen. Laws 1878, c. 190.
North CAROLINA. Prov. St. 1758, c. 5, Rev. 1773, p. 219; St. 1777, c. 23, Laws 1791, p. 343; St. 1809, c. 15; 1813, c. 19; Rev. Laws 1821, c. 122, 773, 863; Rev. St. 1837, c. 74; Rev. Code 1854, c. 71; Battle's Revisal 1873, c. 72.
OREGON. St. December 19, 1865, Gen. Laws 1843–72, p. 679.
PENNSYLVANIA. St. March 23, 1803, 4 Smith's Laws, p. 20; Prud. Dig. (10th Ed.) p. 1065.
RHODE ISLAND. Col. St. 1734, Laws 1744, p. 180; Public Laws 1798, p. 504; Rev. St. 1857, c. 88; Pub. St. 1882, c. 104.
TENNESSEE. Rev. Laws 1809, c. 23; Compilation 1836, p. 486 ; Code 1858, 88 1908–1915; Code 1884, 22 2651-2661.
VERMONT. St. 1866, c. 12; 1867, c. 27 ; 1869, c. 27; Gen. St. 1870, app. pp. 906, 953, 1025; Rev. Laws 1880, c. 148, 22 3215–3224.
VIRGINIA. Col. St. 1667, c. 4, 2 Henn. St. 260; Col. St. 1706, G. 41, 3 Henn. 401 ; Col. St. 1745, c. 11, 5 Henn. 359; St. 1785, c. 82, 12 Henn. 187; Rev. Code 1814, c. 105; Rev. Code 1819, C. 235; Code 1849, c. 63; Code 1873, c. 63.
EST VIRGINIA. Code 1870, c. 44, 82 29-36.
It has been held, in many cases of high authority, that special acts of incorporation, granted by the legislature for the establishment of dams to in. crease and improve the water-power of rivers and navigable waters, for mechanical and manufacturing purposes, are for a public use. Scudder v. Trenton Delaware Falls Co. Saxt. 694, 728, 729; Boston & R. Mill Corp. v. Newman, 12 Pick. 467; Hazen v. Essex Co. 12 Cush. 475; Com. v. Essex Co. 13 Gray, 239, 251, 252; Hankins v. Lawrence, 8 Blackf. 266; Great Falls Manufag Co. v. Fernald, 47 N. H. 444. In some of those cases, the
authority conferred by general mill acts upon any owner of land upon a stream to erect and maintain a mill on his own land and to flow the land of others, for manufacturing purposes, has been considered as resting on the right of eminent domain, by reason of the advantages inuring to the public from the improvement of water-power and the promotion of manufactures. See, also, Holyoke Co. v. Lyman, 15 Wall. 500, 506, 507; Beekman v. Saratoga & S. R. Co. 3 Paige, 45, 73; Talbot v. Hudson, 16 Gray, 417, 426. And the validity of general mill acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions. Jordan v. Woodward, 40 Me. 317; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 78; Venard v. Cross, 8 Kan. 248; Harding v. Funk, Id. 315; Miller v. Troost, 14 Minn.*282, (Gil. 282;) Newcomb v. Smith, 1 Chand. 71, (2 Pin. 131;) Fisher v. Horicon Co. 10 Wis. 351; Babb v. Mackey, Id. 371; Burnham v. Thompson, 35 Iowa, 421.
In New Hampshire, from which the present case comes, the legislature of the province, in 1718, passed an act (for the most part copied from the Massachusetts act of 1714) authorizing the owners of mills to flow lands of others, paying damages assessed by a jury. The act of 1718 continued in force until the adoption of the first constitution of the state in 1784, and afterwards until June 20, 1792, and was then repealed, upon a general revision of the statutes, shortly before the state constitution of 1792 took effect. The provisions of the bill of rights, on which the plaintiff in error relied in the court below, were exactly alike in the two constitutions. Special acts, authorizing the flowing of lands upon the payment of damages, were passed afterwards from time to time; among others, the statute of July 8, 1862, authorizing the Great Falls Manufacturing Company to erect a dam upon Salmon Falls river, which was adjudged by the supreme judicial court of New Hampshire, in 1867, in an opinion delivered by Chief Justice PERLEY, to be consistent with the constitution of that state, because the taking authorized was for a public use. Great Falls Manuf'g Co. v. Fernald, 47 N. H. 444. The statute now in question, the first general mill act passed by the legislature of the state, was passed and took effect on July 3, 1868; was held in Ash v. Cummings, 50 N. H. 591, after elaborate argument against it, to be constitutional, upon the ground of the decision in Great Falls Manuf'g Co. v. Fernald; and was enforced without question in Pollard v. Moore, 51 N. H. 188, and in Town v. Faulkner, 56 N. H. 255. In the case at bar, and in another case since, the state court held its constitutionality to be settled by the former decisions. Amoskeag Manuf'g Co. v. Head, 56 N. H. 386, and 59 N. H. 332, 563; Same v. Worcester, 60 N. H. 522.
The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail-himself at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use, in the constitutional sense, is so important and far reaching, that it does not become this court to express an opinion upon it, when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed, with a due regard to the interests of
all, and to the public good, is within the constitutional power of the legislature. When property, in which several persons have a common interest, can. not be fully and beneficially enjoyed in its existing condition, the law often provides a way in which they may compel one another to submit to measures necessary to secure its beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified.
In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition, upon which the court, if the land cannot be equally divided, will order owelty to be paid, or, in many states, under statutes the constitutionality of which has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money, or else order the whole estate to be sold. King v. Reed, 11 Gray, 490; Bentley v. Long Dock Co. 1 McCart. 480; S. C. on appeal, nom. Manners V. Bentley, 2 McCart. 501; Mead v. Mitchell, 17 N. Y. 210; Richardson v. Monson, 23 Conn. 94. Water rights held in common, incapable of partition at law, may be the subject of partition in equity, either by apportioning the time and extent of use, or by a sale of the right and a division of the proceeds. Smith v. Smith, 10 Paige, 470; De Witt v. Harvey, 4 Gray, 486; McGillioray v. Evans, 27 Cal. 92.
At the common law, as Lord COKE tells us, “if two tenants in common, or joint tenants, be of an house or mill, and it fall in decay, and the one is willing
to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda; and the writ saith, ad reparativnem et sustentationem ejusdem domus teneantur; whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men. Co. Litt. 2006; 4 Kent, Comm. 370. In the same spirit, the statutes of Massachusetts, for 175 years, have provided that any tenant in common, of a mill in need of repair, may notify a general meeting of all the owners for consultation, and that, if any one refuses to attend, or to agree with the majority, or to pay his share, the majority may cause the re pairs to be made, and recover his share of the expenses out of the mill or its profits or earnings. Mass. Prov. St. 1709, c. 3, 1 Prov. Laws (State Ed.) 641, and Anc. Chart. 388; St. 1795, c. 74, SS 5–7; Rev. St. 1836, c. 116, SS 44-58; Gen. St. 1860, c. 149, $$ 53–64; Pub. St. 1882, c. 190, $859–70. And the statutes of New Hampshire, for more than 80 years, have made provision for compelling the repair of mills in such cases. Roberts v. Peavey, 7 Fost. 477, 493.
The statutes which have long existed in many states, authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole tract, by cutting ditches, or otherwise, and to assess and levy the amount of the expense upon all the proprietors in proportion to the benefits received, have been often upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Burt, 22 Pick. 422; Wright v. Boston, 9 Cush. 233, 241; Sherman v. Tobey, 3 Allen, 7; Lowell v. Boston, 111 Mass. 454, 469; French v. Kirkland, 1 Paige, 117; People v. Brooklyn, 4 N. Y. 419, 438; Coster v. Tide-water Co. 3 Č. E. Green, 54, 68, 518, 531; O'Reiley v. Kankakee Valley Draining Co. 32 Ind. 169.
By the maritime law, based, as Lord TENTERDEN observed, on the consideration that the actual employment of ships is “a matter, not merely of private advantage to the owners, but of public benefit to the state," and recognized in the decisions and the rules of this court, courts of admiralty may, when the part owners of a ship cannot agree upon her employment, authorize the majority to send her to sea, on giving security to the dissenting minority to bring back and restore the shin, or, if she be lost, to pay them the value of
their shares; and in such case the minority can neither recover part of the profits of the voyage nor compensation for the use of the ship. Abb. Shipp. pt. 1, c. 3, SS 2, 3; The Orleans, 11 Pet. 175, 183; Rule 20, in admiralty, 3 How. 7; The Marengo, 1 Low. 52. If the part owners are equally divided in opinion upon the manner of employing the ship, then, according to the general maritime law, recognized and applied by Mr. Justice WASHINGTON, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Amer. Jur. 486; S. C. 3 Wall. Jr. 395. See, also, Story, Partn. 8 439; The Nelly Schneider, L. R. 3 Prob. Div. 152.
But none of the cases, thus put by way of illustration, so strongly call for the interposition of the law as the case before us.
The right to the use of running water is publici juris, and common to all the proprietors of the bed and banks of the stream from its source to its outlet. Each has a right to the reasonable use of the water as it flows past his land, not interfering with a like reasonable use by those above or below him. One reasonable use of the water is the use of the power, inherent in the fall of the stream and the force of the current, to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus dammed up by one riparian proprietor spread over the lands of others, they could at common law bring successive actions against him for the injury so done them, or even have the dam abated. Before the mill acts, therefore, it was often impossible for a riparian proprietor to use the waterpower at all, without the consent of those above him. The purpose of these statutes is to enable any riparian proprietor to erect a mill and use the waterpower of the stream, provided he does not interfere with an earlier exercise by another of a like right or with any right of the public; and to substitute, for the common-law remedies of repeated actions for damages and prostration of the dam, a new form of remedy, by which any one whose land is flowed can have assessed, once for all, either in a gross sum or by way of annual damages, adequate compensation for the injury.
This view of the principle upon which general mill acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the supreme judicial court of Massachusetts.
In delivering the opinion of the court in a case decided in 1832, he said: “The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the provincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil; and in ascertain. ing their extent it will be useful to inquire into the principle upon which they are founded. We think they will be found to rest for their justification partly upon the interest which the community at large has in the use and employment of mills, and partly upon the nature of the property, which is often so situated that it could not be beneficially used without the aid of this power. A stream of water often runs through the lands of several proprietors. One may have a sufficient mill-site on his own land, with ample space on his own land for a mill-pond or reservoir, but yet, from the operation of the well-known physical law that fluids will seek and find a level, he cannot use his own property without flowing the water back more or less on the lands of some other proprietor. We think the power given by statute was intended to apply to such cases, and that the legislature meant to provide that, as the public interest in such case coincides with that of the mill-owner, and as the mill-owner and the owner of lands to be flowed cannot both enjoy their full rights, without some interference, the latter shall yield to the former, so far that the former may keep up his mill and head of water, notwithstanding the damage done to the latter, upon payment of an equitable compensation for the real damage sustained, to be ascertained in the mode provided by tho statute.” "From this view of the object and purpose of the statute, we think
it quito manifest that it was designed to provide for the most useful and ben. eficial occupation and enjoyment of natural streams and water-courses, where the absolute right of each proprietor to use his own land and water privileges, at his own pleasure, cannot be fully enjoyed, and one must of necessity, in some degree, yield to the other." Fiske v. Framingham Manuf'g Co. 12 Pick. 68, 70-72.
In another case, decided almost 20 years later, he said: “The relative rights of land-owners and mill-owners are founded on the established rule of the common law that every proprietor, through whose territory a current of water flows in its course towards the sea, has an equal right to the use of it, for all reasonable and beneficial purposes, including the power of such stream for driving mills, subject to a like reasonable and beneficial use by the proprietors above him and below him on the same stream. Consequently, no one can deprive another of his equal right and beneficial use by corrupting the stream, by wholly diverting it, or stopping it from the proprietor below
him, or raise it artificially, so as to cause it to flow back on the land of the proprietor above. This rule, in this commonwealth, is slightly modified by the mill acts, by the well-known provision that when a proprietor erects a dam on his own land, and the effect is, by the necessary operation of natural laws, that the water sets back upon some land of the proprietor above,-a consequence which he may not propose as a distinct purpose, but cannot prevent,-he shall not thereby be regarded as committing a tort, and obliged to prostrate bis dam, but may keep up his dam, paying annual or gross damages, the equitable assessment of which is provided for by the acts. It is not a right to take and use the land of the proprietor above against his will, but it is an authority to use his own land and water privilege to his own advantage and for the bene fit of the community. It is a provision by law for regulating the rights of proprietors on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole, to promote and secure their common rights in it.” Bates v. Weymouth Iron Co. 8 Cush. 548, 552, 553.
Other opinions of Chief Justice Shaw illustrate the same view. Williams v. Nelson, 23 Pick. 141, 143; French v. Bruintree Manuf'g Co. 23 Pick. 216, 218-221; Cary v. Daniels, 8 Metc. 466, 476, 477; Murdock v. Stickney, 8 Cush. 113, 116; Gould v. Boston Duck Co. 13 Gray, 442, 450. It inds more or less distinct expression in other authorities. Lowell v. Boston, 111 Mass. 464–466; U. 8. v. Ames, 1 Wood. & M. 76, 88; Waddy v. Johnson, 5 Ired. Law, 333, 339; Jones v. Skinner, 61 Me. 25, 28; Olmstead v. Camp, 33 Conn. 547, 550; Chief Justice REDFIELD, in 12 Amer. Law Reg. (N. 5.) 498–500. And no case has been cited in which it has been considered and rejected.
Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other states, maintaining the validity of general mill acts as taking private property for public use, in the strict constitutional meaning of that phrase, the statute under which the Amoskeag Manufacturing Company has tlowed the land in question is clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good, in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water-power of running streams, which without some such regulation could not be beneficially used. The statute does not authorize now mills to bo erected to the detriment of existing mills and mill privileges. And by providing for an assessment of full compensation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co. 13 Wall. 166. Being a constitutional exercise of legislative power, and providing a suitable remedy, by trial in the regular course of justice, to recover compensation for the injury to the land of the plaintiff in error, it has not deprived him of his property without due process of law, in violation of the fourteenth amendment of the constitution of the United States. Walker v. Sauvinet, 92 U.S.