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be held to be forbidden by our constitutions. The settled practice of free governments must be our guide in determining what is a public use; and that only can be regarded as 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 in making provision for them otherwise, it is both proper and usual for the government to provide.

Every government makes 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 every one may pass with his own vehicles, the government may establish the higher grade of highways, upon some of which its own vehicles alone shall run, while others shall be open for use by all on the payment of toll. The common highway is kept in repair by assessments of labor and money; the tolls paid turnpikes, or the fares on railways, are the equivalents to these assessments, and the latter are equally public highways with the others, when open for use to the public impartially. The government 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; 4 and other measures of public 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 same reasons as the cases mentioned.5

1 Williams v. School District, 33 Vt. 271.

Reddall v. Bryan, 14 Md. 444; Kane v. Baltimore, 15 Md. 240; Gardner v. Newburg, 2 Johns. Ch. 162.

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 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.

5

Such, for instance, as the construction of a public park, which, in large cities,

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 other manufactories are certainly a public necessity; and while the country is new, and capital not over-abundant for such enterprises, it sometimes seems essential that government should offer large inducements to parties who will supply this necessity. Before steam power came into use, water power was almost the sole reliance; and as reservoirs were generally necessary for this purpose, it would frequently 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 unless at extravagant and inadmissible prices. The legislature in some of the States has taken the matter in hand, and has surmounted the difficulty, sometimes by authorizing the land to be appropriated, and at others 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. There is certainly very much less reason for such statutes now than there was at the beginning of the present century; but their validity has often been recognized in some of the States, and perhaps the same courts would continue to recognize it, notwithstanding the public necessity may no longer 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 a valuable property available which might otherwise be made of little value by narrow, selfish, and

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.

1 See Angell on Watercourses, ch. 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.

unfriendly conduct on the part of individuals, 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 lands which, by the overflow of a river, might otherwise be an extensive and worthless swamp.1

1 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 plaintiffs' 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, 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, ch. 148, incorporating the Salem Mill Dam Corporation; Boston & 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 Common

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, churches, and other public conveniences might as well be taken by the exercise of this extraordinary power. And a 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 a new one, and where it would not be embarrassed by long acquiescence and judicial as well as legislative precedents, it would be held that these laws are not sound in principle, and that they cannot be sustained by the maxims on which is based the right of eminent domain.3

The Taking of Property.

Although property can only be taken for a public use, and the legislature of the State must determine in what cases, it has long been settled that it is not essential that the taking should be to or by the State itself, if by any other agency in the opinion of the legislature the use can be made equally effectual for the public benefit. There are many cases where the appropriation consists simply in throwing the property open to use by such persons as may see fit to avail themselves of it, as in the case of common highways and public parks; and here the title of the owner is not disturbed except as it is charged with this burden; and the State defends the easement, not by virtue of any title in the property, but through criminal proceedings when the general right is diswealth." Hazen v. Essex Company, 12 Cush. 477. See also Boston & Roxbury Mill Corporation v. Newman, 12 Pick. 467 ; Fiske v. Framingham Manufacturing Co., Ibid. 67; Harding v. Goodlett, 3 Yerg. 41. The courts of Wisconsin have sustained such laws. Newcomb v. Smith, 1 Chand. 71; Thien v. Voegtlander, 3 Wis. 465; Pratt v. Brown, Ibid. 603. And those of Connecticut. Olmstead v. Camp, 33 Conn. 532. 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. 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 tres

pass.

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

Sadler v. Langham, 34 Ala. 311.

See this whole subject discussed in a review of Angell on Watercourses, 2 American Jurist, p. 25.

turbed. But in other cases it seems important to take the title; and in many of these cases it is convenient, if not necessary, that the taking be, not by the State, but by the municipality for which the use is specially designed, and to whose care and government it will be confided. When property is needed for a district schoolhouse, it is proper that the district appropriate it; and it is strictly in accordance with the general theory as well as with the practice of our government for the State to delegate to the district the exercise of the power of eminent domain for this special purpose. So a county may be authorized to take lands for its court-house or jail; a city, for its town hall, its reservoirs of water, its sewers and other public works of like importance. In these cases no question arises; the taking is by the public; the use is by the public; and the benefit to accrue therefrom is shared in greater or less degree by the whole public.

If, however, it be constitutional to appropriate lands for mill dams or mill sites, it ought also to be constitutional that the taking be by individuals instead of by the State or any of its organized political divisions; since it is no part of the business of the government to engage in manufacturing operations which come in competition with private enterprise; and the cases must be very peculiar and very rare where a State or municipal corporation could be justified in any such undertaking. And although the practice is not entirely uniform on the subject, the general sentiment is adverse to the construction of railways by the State, and the opinion is quite prevalent, if not general, that they can be better managed, controlled, and operated for the public benefit in the hands of individuals than by State or municipal officers or agencies.

And while there are unquestionably some objections to compelling a citizen to surrender his property to a corporation, whose corporators, in receiving it, are influenced by motives of private. gain and emolument, so that to them the purpose of the appropriation is altogether private, yet conceding it to be settled that these highways are a public necessity, if the legislature, reflecting the public sentiment, decide that the general benefit is better promoted by their construction through individuals or corporations, it would clearly be pressing a constitutional maxim to an absurd extreme if it were to be held that the public necessity should only be provided for in the way which is least consistent with the public

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