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 to convey pure and wholesome water into large towns; 2 it builds levees to prevent the country being overflowed by the rising streams; it may cause drains to be constructed to relieve swamps. and marshes of their stagnant water; and other measures of gen

1 Williams v. School District, 33 Vt. 271. See Hooper v. Bridgewater, 102 Mass. 512.

2 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.

Mithoff v. Carrollton, 12 La. An. 185; Cash v. Whitworth, 13 La. An. 401; Inge v. Police Jury, 14 La. An. 117.

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

eral 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.1

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*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 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

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. Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234; s. c. 6 Am. Rep. 70. 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. A private corporation may be empowered to exercise the right of eminent domain to obtain a way along which to lay pipe for the transportation of oil to a railroad or navigable water. West Va. Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382.

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;" 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, [* 535] such laws 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.4

1 See Angell on Watercourses, c. 12, for references to the statutes on this subject.

"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.

3 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 damages under the act, and not by action at common law as for a wrongful and unwarrantable encroachment upon his right of property. Shaw, Ch. J.: It is contended that if this act was intended to authorize the defendant company to take the mill power and mill of the plaintiff, it was void because it was not taken for public use, and it was not within the power of the government in the exercise of the right of eminent domain. This is the main question. In determining it, we must look to the declared purposes of the act; and if a public use is declared,

66

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*On the other hand, it is said that the legislature of New York has never exercised the right of eminent domain in favor of mills of any kind, and that " sites for steam-engines, hotels,

it will be so held, unless it manifestly appears by the provisions of the act that they can have no tendency to advance and promote such public use. The declared purposes are to improve the navigation of the Merrimac River, and to create a large mill power for mechanical and manufacturing purposes. In general, whether a particular structure, as a bridge, or a lock, or canal, or road, is for the public use, is a question for the legislature, and which may be presumed to have been correctly decided by them. Commonwealth v. Breed, 4 Pick. 463. That the improvement of the navigation of a river is done for the public use has been too frequently decided and acted upon to require authorities. And so to create a wholly artificial navigation by canals. The establishment of a great mill power for manufacturing purposes, as an object of great public interest, especially since manufacturing has come to be one of the great industrial pursuits of the commonwealth, seems to have been regarded by the legislature, and sanctioned by the jurisprudence of the Commonwealth, and in our judgment rightly so, in determining what is a public use, justifying the exercise of right of eminent domain. See St. 1825, c. 148, incorporating the Salem Mill Dam Cor-. poration; Boston and Roxbury Mill Dam Corporation v. Newman, 12 Pick. 467. The acts since passed, and the cases since decided on this ground, are very numerous. That the erection of this dam would have a strong and direct tendency to advance both these public objects, there is no doubt. We are, therefore, of opinion that the powers conferred on the corporation by this act were so done within the scope of the authority of the legislature, and were not a violation of the Constitution of the Commonwealth." Hazen v. Essex Company, 12 Cush. 477. See also Boston and Roxbury Mill Corporation v. Newman, 12 Pick. 467; Fiske v. Framingham Manufacturing Co., ib. 67; Harding v. Goodlett, 3 Yerg. 41. The courts of Wisconsin have sustained such laws. Newcome v. Smith, 1 Chand. 71; Thien v. Voegtlander, 3 Wis. 465; Pratt v. Brown, ib. 603. But with some hesitation of late. See Fisher v. Horricon Co., 10 Wis. 351; Curtis v. Whipple, 24 Wis. 350. And see the note of Judge Redfield to Allen v. Inhabitants of Jay, Law Reg., Aug., 1873, p. 493. And those of Connecticut. Olmstead v. Camp, 33 Conn. 532. And of Maine. Jordan v. Woodward, 40 Me. 317. And of Minnesota. Miller v. Troost, 14 Minn. 365. And they have been enforced elsewhere without question. Burgess v. Clark, 13 Ired. 109; McAfee's Heirs v. Kennedy, 1 Lit. 92; Smith v. Connelly, 1 T. B. Monr. 58; Shackleford v. Coffey, 4 J. J. Marsh. 40; Crenshaw v. Slate River Co., 6 Rand. 245. The whole subject was very fully considered and the validity of such legislation affirmed in Great Falls Manuf. Co. v. Fernald, 47 N. H. 444. And see Ash v. Cummings, 50 N. H. 591. In Loughbridge v. Harris, 42 Geo. 500, an act for the condemnation of land for a grist mill was held unconstitutional, though the tolls were regulated and discrimination forbidden. In Newell v. Smith, 15 Wis. 101, it was held not constitutional to authorize the appropriation of the property, and leave the owner no remedy except to subsequently recover its value in an action of trespass.

churches, and other public conveniences, might as well be taken by the exercise of this extraordinary power." 1 A somewhat similar view has been taken by the Supreme Court of Alabama.2 It is quite possible that, in any State in which this question would be entirely a new one, and where it would not be embarrassed by long acquiescence, or by either judicial or legislative precedents, it might be held that these laws are not sound in principle, and that there is no such necessity, and consequently no such imperative reasons of public policy, as would be essential to support an exercise of the right of eminent domain.3 But accepting as correct the decisions which have been made, it must be conceded that the term "public use," as employed in the law of eminent domain, has a meaning much controlled by the necessity, and somewhat different from that which it bears generally.4

1 Hay v. Cohoes Company, 3 Barb. 47.

2 Sadler v. Langham, 34 Ala. 311. In this case, however, it was assumed that lands for the purposes of grist-mills which grind for toll, and were required to serve the public impartially, might, under proper legislation, be taken under the right of eminent domain. The case of Loughbridge v. Harris, 42 Geo. 500, is contra. In Tyler v. Beacher, 44 Vt. 648, it was held not competent, where the mills were subject to no such requirement. See the case, 8 Am. Rep. 398. And see note by Redfield, Am. Law Reg. Aug. 1873, p. 493.

8 See this subject in general discussed in a review of Angell on Watercourses, 2 Am. Jurist, p. 25.

In People v. Township Board of Salem, 20 Mich., the court consider the question whether a use which is regarded as public for the purposes of an exercise of the right of eminent domain, is necessarily so for the purposes of taxation. They say: "Reasoning by analogy from one of the sovereign powers of government to another is exceedingly liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general sense and for other purposes it would be idle or misleading to apply the same term. All governmental powers exist for public purposes, but they are not necessarily to be exercised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public welfare, but it reaches to every person, to every kind of business, to every species of property within the Commonwealth. The conduct of every

individual, and the use of all property and of all rights is regulated by it, to any extent found necessary for the preservation of the public order, and also for the protection of the private rights of one individual against encroachment by others. The sovereign power of taxation is employed in a great many cases where the power of eminent domain might be made more immediately efficient and available, if constitutional principles could suffer it to be resorted to; but each of these has its own peculiar and appropriate sphere, and the object which