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the condition to the exercise of that right merely, and there is not in that clause, or anywhere else in the constitution, ground for suspicion even, that they intended to define or limit in any way or manner the right itself. The law in question complies with the condition and is not in conflict.

3. The principal objections to the law are founded on the assumption that it is contrary to natural justice. I am satisfied that it is not. The right to take private property for public use, or of eminent domain, is a reserved right attached to every man's land, and paramount to his right of ownership. He holds his land subject to that right, and cannot complain of injustice when it is lawfully exercised. The right consists of two elements,—the right to take, and the right to judge of and determine the exigency and the necessity for taking it. These are both and equally vested in the legislature. Bouvier (Law Dictionary) says, “It belongs to the legislature to decide what improvements are of sufficient importance to justify the exercise of the right of eminent domain.” And the authorities cited fully sustain him. It is for the legislature, therefore, to determine what is required by the wants of the people, or for the public good, in the exercise of a sound discretion. With the bonâ fide and not unreasonable exercise of that discretion courts cannot interfere. As the legislature in this case have exercised their discretion honestly, deliberately, and after much agitation of the subject, and the law is confessedly beneficial to the public interest, there would seem to be no question about its constitutionality.

But several objections are made on the ground that the right is limited to actual governmental or individual use, and they must be fairly examined.

The objections are made in various forms, but they may all be resolved, substantially, into two classes. The first class of objectors ignore entirely the fact that the right of eminent domain is granted in the constitution as part of the legislative power, and assume the grant to be by the clause in the bill of rights; and further assume that every man is the absolute owner of his property, and that the grant is an invasion of that ownership; and then argue that the grant is in derogation of common right, and to be strictly construcd; and therefore that the terms “public use” should be construed to be a use by the government, its officers and agents only. As this objection is founded on an ignorance of

the existence of the right of eminent domain in the legislature independent of the clause in question, a false assumption in relation to the character of that clause, and a false assumption as to the absolute ownership of the property, and is wholly unsupported by authority, it is entitled to no consideration.

The second class of objectors concedle the right of eminent domain in the legislature, but claim that the clause in the bill of rights is an implied prohibition against taking the property for any other purpose, and that the words “public use" must be construed to mean an actual personal use by the government or by individual members of the public. I do not think the claim that the clause in the bill of rights contains an implied prohibition is correct, or see its materiality if it is. It is the essence of the right of eminent domain that the property shall be taken “for public use,' and the question remains open, what is the meaning of the words, and who is to determine what constitutes such use, whether there be such a prohibition or not.

But suppose it admitted that some actual use by the public is exsential to the just exercise of the right of eminent domain, the law will still be constitutional.

This class of objectors concede that grants of rights of easement to railroad companies, water companies for the distribution of water in cities and villages, and gas light companies, are constitutional, because they say the public use them. But let us see what use the public make of them. A. takes his goods to the railroad, pays the freight to their place of destination, places them in the cars, or they are placed there by the employees of the company, and they are transported pursuant to his contract. Now to have the use of a thing in the sense in which the objectors use the words, is to have some exclusive occupation and control of it. What use or control has A. of the road, its equipments or operation, by reason of the fact that he has shipped his goods upon it? None whatever. If he can be said to use anything it is the transportation, the result or product of the use and operation of the road and its equipments by the company. Nor is the case different if he applies for transportation for himself, except in the deceptive particular that, being animate and having the power of locomotion, he is expected to place himself upon the train instead of being placed there by the employees of the company. In all other respects he is as much the passive recipient of

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transportation, as the result or product of the operation of the road, as his inanimate goods. So too of the water power company. The public have no use of the franchise or structure, nor control of its operations. All they have is the use of the water delivered to them by the operation of the structures as used and controlled by the company. The same is true of the gas light company.

The following proposition then may be deduced from the three instances alluded to and conceded to be constitutional, viz. :

The legislature may lawfully grant rights of easement to individuals or corporations to enable them to erect and operate structures, if the result of their operation is the production of an article or thing intended to be furnished or sold to the public for a beneficial use, and to supply their reasonable wants.

This proposition covers the case in hand as perfectly as it does either of the other three, for the flowage law is intended to grant rights of easement which will enable individuals or corporations to enlarge or erect and operate structures, the result or product of the operation of which will be articles (such as cotton or woollen cloth and the like) intended to be sold to the public for their necessary and beneficial use. And if there be any element of public use in the other cases or cither of them, it is contained in the law in question, and it is constitutional upon the principles claimed or conceded by this class of objectors.

But there is no such limitation, nor any specific limitation to the bonâ fide exercise of their discretion by the legislature, known to the law. The cases cited from Kent are not cases of limitation, but of arbitrary power, exercised pretendedly and fraudulently, under cover of the right. If the true nature of the right of eminent domain, and the true object and operation of the clause in the bill of rights are regarded, all difficulties vanish; and I have yet to hear or read the first argument or opinion adverse to the law in question, having any plausibility, which was not founded on a misconception of one or the other. A distinguished judge, even, speaks of the taking and grant “as a forced sale;" but if such were their character they could not stand an instant. The legislature cannot compel one man to sell to another. The true theory and principle of the matter is, that the legislature resume dominion over the property, and having resumed it, instead of using it by their agents, to effect the intended public good, and to

avoid entanglement in the common business of life, they revest it in other individuals or corporations, to be used by them, in such manner as to effect directly or indirectly, or incidentally as the case may be, the public good intended. And it is perfectly immaterial to the owner of the property in what manner the legislature use it or cause it to be used after they have resumed it and he is justly and fully compensated. He has on that acoount no ground for complaint. Upon the strictest principles, therefore, I consider the law constitutional.

Upon the other points I also concur with the majority of the

court.

CARPENTER, J., concurred in both the foregoing opinions. HINMAN, C. J., dissented.

The importance and acknowledged Laws” exist to retrace their steps, and difficulty of the question so extensively declare them, or the decisions in regard discussed in the opinion of Mr. Justice to them, based on wrong grounds. There Butler in the foregoing case, would are two systems of “Mill Laws," one certainly justify an extended examina- called the Massachusetts, and the other tion of its grounds. But we should not the Virginia system, with reference to desire to do this, as a general thing, the states where they had their origin. unless we felt some confidence we might In the former the statute only gives the aid in bringing the public opinion, or right to flow the land of another against the judicial opinion of the public, to a his will, for the purpose of extending a different result at some future time. mill-pond or water-power. There is This is always hopeful, where the course here no attempt to take the land for, or of judicial decision is both wrong in to transfer any interest in the land to, principle and inconvenient in its prac the owner of the mill. And althougn tical operation. In such a case the in- the statutes, in some of the states, folconvenience of the rule constantly lowing this class of laws, may declare prompts to revision and agitation until the right to flow the land for mill purthe obstinacy of judicial blindness is poses, and to continue the dam after the compelled to see, and to retrace its error. recovery of damages for its continuance But where the error, in principle, is of hitherto, yet this may be regarded as 80 long standing as in the present case, nothing more than the form of affirmand fortified by such repeated acts of ing that the party whose land is thus legislative confirmation, and above all, flowed shall have no redress, by way of where it is further supported by all pub- injunction out of chancery, against conlic opinion, and the convenience of mul- tinuing the dam, and no right to appeal titudes, against the remonstrances of here to a common-law court to remove the and there a churlish landowner, there is nuisance, prosternere nocumentum, and no small hope that the speculative error of right to abate the nuisance by his own the law will ever be made so obvious as act; in short, that he shall have no to induce the majority of judicial tribu- remedy except to have his damages annals in the states where these “Mill nually assessed by a jury. Treating the

statutes of this class as a mere prescrip- domain, and declares that these " Mill tion of the exclusive remedy for an Acts” are the taking of the use of one acknowledged wrong, we see no very

man's land for the benefit or use of anclear ground to complain of their consti- other, and that this is going to the very tutionality. But where it is attempted to extreme verge of constitutional right, be placed upon the ground of right, as and, if new, would be held unconstitucoming fairly within the range of exer- tional. And the principal case, as well cising the prerogative power of eminent as that of Olmstead v. Camp, 33 Conn. domain, it has always seemed to us ex- 532, upon which the decision rests, are ceedingly questionable.

placed upon the ground of the lawful And we understand Chief Justice exercise of the right of eminent domain. Slaw to have always placed the consti- And we understand the Supreme Court tutionality of these statutes on other of New Hamshire have recently detergrounds than that of the exercise of the mined the same question, in a very right of eminent domain by the sovereign elaborate opinion, which is not reported, power of the state : Murdock v. Stickney, but in which the court vindicate the con8 Cush. 113. But in Talbott v. Hudson, stitutionality of these laws, and, as we 24 Law Reporter 228, Bigelow, C. J., infer, upon the ground of the right of seems to regard these laws as a mere eminent domain. assertion of the right of eminent do- This is such an array of authority main. And the last case, as well as that we should have little hope of it ever that of Hazen v. The Essex Co., 12 being changed, and especially when these Cush. 475, where the statute authorized laws are so popular, and those who one water-power to be so extended as to doubt their validity so little regarded. ruin another, there seems no very obvi- It seems to be a case where might makes ous mode of defending the proceeding, right, by common consent, and the judiunless it can be done upon the plea that ciary have no function remaining but to it is a legitimate exercise of the right assign the best reason they can for a of eminent domain. No other mode foregone conclusion. The

case of occurs to us at present, unless we can Moore v. Wright, 34 Alabama 311, is say that it is only the provision of a the only case where these laws have been peculiar remedy in a special class of held unconstitutional, as far as we know.

And we might be satisfied with And this case was under a statute like this view if the statute, in terms, or by those of Virginia. But we are not sure fair construction, could be made to apply the cases differ essentially in principle, to classes of cases, as where one destroys if both are attempted to be placed upon property of another to escape greater the ground of the exercise of the right loss himself. But it seems to be pro

of eminent domain. For in that view vided only for the particular cases, and it cannot affect the principle very essennot to come within the class of statutes tially whether you take the land or the affecting procedure, which always apply use of it. And, indeed, there is no to classes of cases. It looks, therefore, essential difference between taking a perin these cases, very much like the exer- petual use of land and the land itself. cise of sovereign power under the claim The injury is much the same in either of the reserved right to apply land, or the use of it, to public use. And in But it seems to us there is an essential Jordan v. Woodward, 40 Me. 317, difference in the two classes of cases in Rice, J., seems to treat the proceedings one particular. In none of the Massaas the exercise of the right of eminent chusetts cases is there any attempt to

cases.

case.

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