what quantum of interest would pass from him: it would be sufficient that some interest, the appropriation of which detracted from his right and authority, and interfered with his exclusive possession as owner, had been taken against his will; and if taken for a purely private purpose, it would be unlawful. Nor could it be of importance that the public would receive incidental benefits, such as usually spring from the improvement of lands or the establishment of prosperous private enterprises: the public use implies a Taylor v. Porter, 4 Hill, 142, per Bronson, J.; White v. White, 5 Barb. 474; Sadler v. Langham, 34 Ala. 311; Pittsburg v. Scott, 1 Penn. St. 139; Bankhead v. Brown, 25 Iowa, 540. A neighborhood road is only a private road, and taking land for it would not be for a public use. Dickey v. Tennison, 27 Mo. 373. To avoid this difficulty, it is provided by the constitutions of some of the States that private roads may be laid out under proceedings corresponding to those for the establishment of highways. There are provisions to that effect in the Constitutions of New York, Georgia, and Michigan. But in Harvey v. Thomas, 10 Watts, 65, it was held that the right might be exercised in order to the establishment of private ways from coal fields to connect them with the public improvements, there being nothing in the constitution forbidding it. See also the Pocopson Road, 16 Penn. St. 15. But this doctrine is directly opposed to Young v. McKenzie, 3 Georgia, 44; Taylor v. Porter, 4 Hill, 146; Buffalo and N. Y. R.R. Co. v. Brainerd, 9 N. Y. 108; Bradley v. N. Y. and N. H. R.R. Co. 21 Conn. 305; Reeves v. Treasurer of Wood Co. 8 Ohio, N. s. 344, and many other cases though possibly convenient access to the great coal fields of the State might be held to be so far a matter of general concern as to support an exercise of the power on the ground of the public benefit. In Eldridge v. Smith, 34 Vt. 484, it was held that the manufacture of railroad cars was not so legitimately and necessarily connected with the management of a railroad that the company would be authorized to appropriate lands therefor. So, also, of land for the erection of dwelling-houses to rent by railroad companies to their employés. In the text we have stated what is unquestionably the result of the authorities; though if the question were an open one, it might well be debated whether the right to authorize the appropriation of the property of individuals did not rest rather upon grounds of general public policy than upon the public purpose to which it was proposed to devote it. There are many cases in which individuals or private corporations have been empowered to appropriate the property of others when the general good demanded it, though the purpose was no more public than it is in any case where benefits are to flow to the community generally from a private enterprise. The case of appropriations for mill-dams, railroads, and drains to improve lands are familiar examples. These appropriations have been sanctioned under an application of the term “ public purpose," which might also justify the laying out of private roads, when private property could not otherwise be made available. Upon this general subject, the reader is referred to an article by Hon. J. V. Campbell in the Bench and Bar for July, 1871. possession, occupation, and enjoyment of the land by the public at large, or by public agencies;1 and a due protection to the rights of private property will preclude the government from seizing it in the hands of the owner, and turning it over to another on vague grounds of public benefit to spring from the more profitable use to which the latter may devote it. We find ourselves somewhat at sea, however, when we [*532] undertake to define,* in the light of the judicial decisions, what constitutes a public use. It has been said by a learned jurist that, "if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose.2 It is upon this principle that the legislatures of several of the States have authorized the condemnation of the lands of individuals for mill sites, when from the nature of the country such mill sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned. Upon the same principle of public benefit, not only the agents of the government, but also individuals and corporate bodies have been authorized to take private property for the purpose of making public highways, turnpike roads, and canals; of erecting and constructing wharves and basins; of establishing ferries; of draining swamps and marshes, and of bringing water to cities and villages. In all such cases the object of the legislative grant of power is the public advantage expected from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through the medium of corporate bodies, or of individual enterprise." 3 It would not be entirely safe, however, to apply with much liberality the language above quoted, that, "where the public interest can be in any way promoted by the taking of private property," the taking can be considered for a public use. It is certain that Per Tracy, Senator, in Bloodgood v. Mohawk and Hudson R.R. Co. 18 Wend. 60. 22 Kent Com. 340. 3 Walworth, Chancellor, in Beekman v. Saratoga and Schenectady R.R. Co. 3 Paige, 73. And see Wilson v. Blackbird Creek Marsh Co. 2 Pet. 251. there are very many cases in which the property of some individual owners would be likely to be better employed or occupied to the advancement of the public interest in other hands than in their own; but it does not follow from this circumstance alone that they may rightfully be dispossessed. It may be for the public benefit that all the wild lands of the State be improved and cultivated, all the low lands drained, all the unsightly places beautified, all dilapidated buildings replaced by new; because all these things tend to give an aspect of beauty, thrift, and comfort to the country, and thereby to invite settlement, increase the value of lands, and gratify the public taste; but the common law has never sanctioned an appropriation of property based upon these considerations alone; and some further element must therefore be involved before the appropriation can be regarded as sanctioned * by [* 533] our constitutions. The reason of the case and the settled practice of free governments must be our guides in determining what is or is not to be regarded a public use; and that only can be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty — perhaps impossibility of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide. Every government is expected to make provision for the public ways, and for this purpose it may seize and appropriate lands. And as the wants of traffic and travel require facilities beyond those afforded by the common highway, over which any one may pass with his own vehicles, the government may establish the higher grade of highways, upon some of which only its own vehicles can be allowed to run, while others, differently constructed, shall be open to use by all on payment of toll. The common highway is kept in repair by assessments of labor and money; the tolls paid upon turnpikes, or the fares on railways, are the equivalents to these assessments; and when these improved ways are required by law to be kept open for use by the public impartially, they also may properly be called highways, and the use to which land for their construction is put be denominated a public use. The government also provides court-houses for the administration of justice; buildings for its seminaries of instruction; aqueducts 1 1 Williams v. School District, 33 Vt. 271. to convey pure and wholesome water into large towns; it builds levees to prevent the country being overflowed by the rising streams; 2 it may cause drains to be constructed to relieve swamps and marshes of their stagnant water; 3 and other measures of general utility, in which the public at large are interested, and which require the appropriation of private property, are also within the power, where they fall within the reasons underlying the cases mentioned.4 [*534] * Whether the power of eminent domain can rightfully be exercised in the condemnation of lands for manufacturing purposes, where the manufactories are to be owned and occupied by individuals, is a question upon which the authorities are at variance. Saw-mills, grist-mills, and various other manufactories, are certainly a public necessity; and while the country is new, and capital not easily attainable for their erection, it sometimes seems to be essential that government should offer large inducements to parties who will supply this necessity. Before steam came into use, water was almost the sole reliance for motive power; and as reservoirs were generally necessary for this purpose, it would sometimes happen that the owner of a valuable mill site was unable to render it available, because the owners of lands which must be flowed to obtain a reservoir would neither consent to the 1 Reddall v. Bryan, 14 Md. 444; Kane v. Baltimore, 15 Md. 240; Gardner v. Newburg, 2 Johns. Ch. 162; Ham v. Salem, 10 Mass. 350. 2 Mithoff v. Carrollton, 12 La. An. 185; Cash v. Whitworth, 13 La. An. 401; Inge v. Police Jury, 14 La. An. 117. 3 Anderson v. Kerns Draining Co. 14 Ind. 199; Reeves v. Treasurer of Wood County, 8 Ohio, N. s. 344. See a clear statement of the general principle and its necessity in the last-mentioned case. The drains, however, which can be authorized to be cut across the land of unwilling parties, or for which individuals can be taxed, must not be mere private drains, but must have reference to the public health, convenience, or welfare. Reeves v. Treasurer, &c. supra. And see People v. Nearing, 27 N. Y. 306. It is competent under the eminent domain to appropriate and remove a dam owned by private parties, in order to reclaim a considerable body of lands flowed by means of it, paying the owner of the dam its value. Talbot v. Hudson, 16 Gray, 417. Such, for instance, as the construction of a public park, which, in large cities, is as much a matter of public utility as a railway or a supply of pure water. See Matter of Central Park Extension, 16 Abb. Pr. Rep. 56; Owners of Ground v. Mayor, &c., of Albany, 15 Wend. 374. Or sewers in cities. Hildreth v. Lowell, 11 Gray, 345. A city may be authorized to appropriate lands in order to fill them up, and thereby abate a nuisance upon them. Dingley v. Boston, 100 Mass. 544. construction of a dam, nor sell their lands except at extravagant and inadmissible prices. The legislatures in some of the States have taken the matter in hand, and have surmounted the difficulty, sometimes by authorizing the land to be appropriated, and at other times by permitting the erection of the dam, but requiring the mill owner to pay annually to the proprietor of the land the damages caused by the flowing, to be assessed in some impartial mode. The reasons for such statutes have been growing weaker with the introduction of steam power and the progress of improvement, but their validity has repeatedly been recognized in some of the States, and probably the same courts would continue still to recognize it, notwithstanding the public necessity may no longer appear to demand such laws.2 The rights granted by these laws to mill owners are said by Chief Justice Shaw, of Massachusetts, to be "granted for the better use of the water power, upon considerations of general policy and the general good";3 and in this view, and in order to render available a valuable property which might otherwise be made of little use by narrow, selfish, and unfriendly conduct on the part of individuals, such laws [*535] may perhaps be sustained on the same grounds which support an exercise of the right of eminent domain to protect, drain, and render valuable the lands which, by the overflow of a river, might otherwise be an extensive and worthless swamp.1 1 See Angell on Watercourses, c. 12, for references to the statutes on this subject. 2 "The encouragement of mills has always been a favorite object with the legislature; and though the reasons for it may have ceased, the favor of the legislature continues." Wolcott Woollen Manufacturing Co. v. Upham, 5 Pick. 294. * French v. Braintree Manufacturing Co. 23 Pick. 220. Action on the case for raising a dam across the Merrimac River, by which a mill stream emptying into that river, above the site of said dam, was set back and overflowed, and a mill of the plaintiff situated thereon, and the mill privilege, were damaged and destroyed. Demurrer to the declaration. The defendant company were chartered for the purpose of constructing a dam across the Merrimac River, and constructing one or more locks and canals, in connection with said dam, to remove obstructions in said river by falls and rapids, and to create a water power to be used for mechanical and manufacturing purposes. The defendants claimed that they were justified in what they had done, by an act of the legislature exercising the sovereign power of the State, in the right of eminent domain; that the plaintiff's property in the mill and mill privilege was taken and appropriated under this right; and that his remedy was by a claim of |