A bill was filed in the Circuit Court of the District of
Columbia against the Chesapeake & Ohio Canal Company, claiming
as riparian proprietor from the company a right to use, for
manufacturing purposes, the water of the Potomac, introduced
through the land of the appellant when the quantity of water so
introduced should exceed that required for navigation. The bill
charged that the land of the appellant was susceptible of being
improved, and was intended so to be, for the purposes of
manufacturing by employing the water of the Potomac, prior to 1784,
in which year the Potomac Company was chartered. All the chartered
rights of that company and all their obligations were, in 1825,
transferred to the Chesapeake & Ohio Canal Company. By the
improvements made by the Potomac Company, much surplus water was
introduced and wasted
on the land of the appellant. The Chesapeake & Ohio Canal
Company had deepened the canal; had made other improvements on the
land of the appellant, thus introducing a large quantity of water
for navigation and manufacturing. The appellant claims that under
the charter of the Potomac Company, held by the Chesapeake &
Ohio Canal Company, he is entitled to use this surplus water for
manufacturing purposes. If the water is insufficient for this
purpose, he claims to be allowed to have the works enlarged to
obtain a sufficient
supply. The court held that under the provisions of the charter,
the purposes for which lands were to be condemned and taken were
for navigation only,
limiting the quantity taken to such as was necessary for public
purposes. By the thirteenth section of the charter of the Potomac
Canal Company of 1784, the company were authorized, but not
compelled, to enter into agreements for
the use of the surplus water. The owner of the adjacent lands
required no such special permission by law; this is a right
incident to the ownership of
land. The authority on both sides was left open to the mutual
agreements of the parties, but neither could be compelled to enter
into an agreement relative to the surplus water.
The appellant, on 5 December, 1831, filed a bill in the Circuit
Court of the County of Washington against the appellees by which he
charged that he and those under whom he claims held title to and
were in possession of three adjacent tracts of land on the shore of
the River Potomac, and where the said river is innavigable, prior
to the year 1784.
That these lands, being situated on that part of the river
called the Little Falls, were susceptible of being improved by
Page 33 U. S. 202
applying the water of the river for manufacturing purposes, and
were, prior to the year 1784, intended by the proprietors to be so
improved.
That when the charter of the Potomac Company was granted in 1784
by Maryland and Virginia, it was known that such improvement was
intended, and the charter expressly secured the rights of such
proprietors by the thirteenth section of the act of incorporation,
which is in these words:
"Sec. XIII. And whereas some of the places through which it may
be necessary to conduct the said canals may be convenient for
erecting mills, forges, or other waterworks, and the persons
possessors of such situation may design to improve the same, and it
is the intention of this act not to interfere with private
property, but for the purpose of improving and perfecting the said
navigation, be it enacted that the water, or any part thereof,
conveyed through any canal or cut, made by the said company shall
not be used for any purpose but navigation unless the consent of
the proprietors of the land through which the same shall be led be
first had, and the said president and directors, or a majority of
them, are hereby empowered and directed, if it can be conveniently
done to answer both the purposes of navigation and waterworks
aforesaid, to enter into reasonable agreements with the proprietors
of such situation concerning the just proportion of the expenses of
making large canals or cuts, capable of carrying such quantities of
water as may be sufficient for the purposes of navigation, and also
for any such waterworks as aforesaid."
In the year 1825, the Chesapeake & Ohio Canal Company
obtained a charter, and by this charter and the proceedings under
it this company has obtained a surrender from the Potomac Company
of all its chartered rights and privileges and property, and now
holds the same "in the same manner and to the same effect" as they
were before held by the Potomac Company.
The bill charges that in the year 1793, the Potomac Company made
a condemnation under its charter of a portion of these lands for a
canal, which is exhibited, and made a canal through the same which
was so constructed as to admit more water than was necessary for
navigation, which surplus water was wasted on the lands of
complainant at four sluice gates
Page 33 U. S. 203
and three waste dams, and continued to be so wasted at such
places during the continuance of the words of said company.
The complainant further charges that since their incorporation
and the surrender of the charter of the Potomac Company, the
Chesapeake & Ohio Canal Company have taken possession of the
canal of the former company, and of the land so condemned, and have
also entered upon other parts of his said land not condemned, and
have greatly enlarged and deepened the said canal, and constructed
a part of it as a feeder for their main canal, and erected a
permanent stone dam across the river, and introduced therein a
large quantity of water for the purpose, as appears, in their own
reports, memorials and proceedings, of obtaining "a large volume of
surplus water to sell for manufacturing purposes, and to be applied
to other canals to be hereafter authorized."
The bill further charges that these works may, if necessary in
order to introduce more water into the canal, be enlarged, and
though the complainant avers that the quantity of water now
admitted is abundant both for navigation and for manufacturing
purposes, yet he declares that he has always been, and yet is
willing to make an equitable arrangement to pay a fair proportion
of the expense of such enlargement if the same should be adjudged
necessary.
The complainant further charges that by these works of the said
two companies it has been made if not impracticable, yet very
expensive and difficult for him to apply the water of the river to
works upon his lands without taking the same out of the said canal
and feeder. He contends that under these charters he is entitled to
be allowed the use of the surplus water out of the canal and
feeder, and complains that the defendant has wholly refused to
admit him on any terms to use the said surplus water, or to make
any equitable agreement for the enlargement of the works, if they
shall contend that such enlargement is necessary, and that they
avow their determination to take the water through his said lands
without his being allowed in any manner or upon any terms the use
of said water, and to dispose of the same, after passing through
his lands, at such places as they are allowed by the present
charter to waste the same, for their own benefit and profit, and
also to sell the same wherever they may find it advantageous to do
so,
Page 33 U. S. 204
if they can obtain an amendment of their charter to authorize
them so to do, for which amendment they are now making
application.
The complainant prays to be relieved against these wrongs, to be
allowed to use the surplus water now admitted into the canal and
feeder, which he avers is abundant both for navigation and
manufacturing purposes, and if found insufficient, then to be
allowed to have the works enlarged upon equitable terms to admit a
sufficient supply of water for both purposes, and also prays for
general relief.
The answer denies the right of complainant to the relief sought
or to any relief; denies that he or those under whom he claims had
any right to use the water of the river on their lands for
manufacturing purposes prior to the charter to the Potomac Company
in 1784; denies that such right, if he has it, has been affected by
the works of either company; denies his right to any use of the
water under the charter of that company and under the charter of
the present company; admits that they have enlarged the canal and
feeder so as to receive more water than is necessary for
navigation, and
"that a considerable quantity of surplus water might be used and
expended on that part of the canal adjacent to the lands claimed by
complainant and through said lands without injury to the navigation
of said canal,"
and "claims the said water as their sole and exclusive
property," and insists that
"they possess the same right in disposing of the same to
determine where it shall be vented from the canal, and in what
quantities, and upon what terms it shall be enjoyed by others, as
they have in exercising similar acts of ownership over any other
description of property to which their title is absolute and
unconditional."
It was agreed that the complainant has title to the lands set
forth in the bill, and the location of the said lands and their
susceptibility of improvement for manufacturing purposes were
admitted to be as set forth in the bill.
The appellant made the following points.
1. That the complainant, and those under whom he claims, had the
right to apply the water of the river to manufacturing purposes on
the said lands, prior to the act of 1784, incorporating the Potomac
Company.
Page 33 U. S. 205
2. That this right was affirmed and secured by that act and the
terms and manner of exercising it provided for.
3. That the charter of the Chesapeake & Ohio Canal Company
does not impair this right.
4. The lands owned by the complainant having the entire and sole
command of the falls, and no proprietor of lands below him being
able to get the water without taking it through his land, the
Chesapeake & Ohio Canal Company cannot condemn his land and
construct their works so as to take the water through his land and
dispose of it on lands below him without his consent.
5. The company has no right to take his land or construct their
works so as to admit more water into their canal than was necessary
for the purposes of navigation, and this the evidence and their own
reports and proceedings show they have done.
6. The Potomac Company, having constructed their canal and
established sluices and waste dams for the discharge of surplus
water on the complainant's lands for more than twenty-five years,
which surplus water could have been applied to manufacturing
purposes (as proved by the evidence of Payne Pierce and Thompson),
the present company is bound to allow the complainant the use of an
equal quantity of the surplus water on his said land.
7. The company, having purposely introduced more water than was
necessary for navigation with a view to dispose of it for its own
benefit, cannot take it through the complainant's land and dispose
of it under their charter even at places where it may be necessary
to waste what was thus introduced.
8. That the said company has no right to enter upon or condemn
any lands of the complainant not included in the condemnation of
the Potomac Company, Congress not having given any such power of
entry or condemnation and Congress having no right under the
Constitution and acts of cession of Maryland and Virginia to give
such power.
Page 33 U. S. 206
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case comes before the Court from the Circuit Court of the
District of Columbia for the County of Washington on appeal from a
decree dismissing the bill of the complainant in that court, who is
the appellant here.
The questions involved in this controversy are highly important
to the parties in a pecuniary point of view, and embrace in some
measure public considerations connected with the Chesapeake &
Ohio Canal Company. These considerations have led to a range of
argument at the bar and the discussion of many questions important
and interesting in themselves, but which are not raised by the case
now presented to the judgment of this Court, and we shall confine
ourselves to the questions properly arising out of the pleadings in
the cause.
The bill filed in the court below charges that, prior to the
year 1784, the appellant and those under whom he claims held title
to and were in possession of certain tracts of land on the shore of
the River Potomac, where the said river was innavigable. That these
lands, being situated on that part of the river called the Little
Falls, were susceptible of being improved by applying the water of
the said river to manufacturing purposes, and were, prior to the
year 1784, intended by the proprietors to be so improved.
Page 33 U. S. 207
That when the charter of the Potomac Company was granted, it was
known that such improvement was intended. And that the charter
expressly secured the rights of such proprietors by the thirteenth
section of the act incorporating that company in the year 1784.
The bill then charges that in the year 1825, the Chesapeake
& Ohio Canal Company obtained a charter by which and the
proceedings under it, this company obtained a surrender from the
Potomac Company of all its chartered rights, privileges, and
property, and now holds the same in the same manner and to the same
effect as they were before held by the Potomac Company.
The bill further charges that in the year 1793, the Potomac
Company made a condemnation under its charter of a portion of these
lands for a canal, and made a canal through the same which was so
constructed as to admit more water than was necessary for
navigation. Which surplus water was wasted on the lands of the
complainant at four sluice gates and three waste dams, and
continued to be so wasted at such places during the continuance of
the works of the said company.
That the Chesapeake & Ohio Canal Company, since its
incorporation and the surrender of the charter of the Potomac
Company to it, has taken the possession of the canal of that
company and of the land so condemned. And has also entered upon
other portions of said land adjacent thereto and has greatly
enlarged and deepened the said canal and constructed a part of it
as a feeder for the main canal and erected a permanent stone dam
across the river and introduced into the land a large quantity of
water for the purpose, as is alleged, of obtaining a large volume
of surplus water to sell for manufacturing purposes and to be
applied to other canals to be hereafter authorized.
The bill further alleges that these works may, if necessary, be
still further enlarged so as to admit a still further supply of
water, which might be conveniently applied to the purposes both of
navigation and manufactories. And that although all the water now
admitted is abundantly sufficient both for navigation and for
manufacturing purposes without enlargement, yet that the
complainant has always been and yet is willing to make an equitable
arrangement to pay a fair
Page 33 U. S. 208
proportion of the expense of such enlargement if the same shall
be adjudged necessary.
The bill further charges that by these works of the two
companies it has been made if not impracticable yet very expensive
and difficult for him to apply the water of the river to works upon
his lands without taking the same out of the said canal and feeder,
and he claims that under these charters he is entitled to be
allowed the use of the surplus water out of the canal and feeder.
But that the defendant has wholly refused to admit him on any terms
to use the said surplus water or to make any equitable agreement
for the enlargement of the said works if they shall contend that
such enlargement is necessary.
And the specific relief prayed is that the complainant be
allowed to use the surplus water now admitted into the canal and
feeder, which, he avers, is abundantly sufficient both for
navigation and manufacturing purposes. And if found insufficient,
then to be allowed to have the works enlarged upon equitable terms
to admit a sufficient supply of water for both purposes.
The answer denies the right of the appellant to the specific
relief prayed or to any relief whatever. Denies that he or those
under whom he claims had any right to the use of the water of the
river on their lands for manufacturing purposes prior to the
charter to the Potomac Company in the year 1784. Denies that such
right, if he has it, has been affected by the works of either
company. Denies the complainant's right to any use of the water
under the charter to the Potomac Company or under the charter to
the Chesapeake & Ohio Canal company.
The defendant admits that it has enlarged the canal and feeder
so as to receive more water than is necessary for the purpose of
navigation, and that a considerable quantity of surplus water might
be used on that part of the canal adjacent to the lands claimed by
the appellant and through which the canal runs without injury to
the navigation of the canal. But it claims said water as its own
exclusive property, and insists it has the same right in disposing
of it that it has over any other description of property to which
its right is absolute and unconditional.
It will be perceived by this statement of the bill and
answer
Page 33 U. S. 209
that many of the questions which have been raised and argued at
the bar are not necessarily involved in the decision of the cause.
The rights of the appellant, and of those under whom he claims, as
riparian proprietors antecedent to the charter of 1784 to the
Potomac Company are not drawn in question under the allegations in
the bill. The appellant does not set up any right in hostility to
the rights granted by those charters, but his claim rests upon an
affirmance of those charters. His claim is of a right to the use of
the surplus water now admitted into the canal and feeder, and if
that is insufficient both for navigation and manufacturing
purposes, his prayer is that the defendant may be compelled to
allow the works to be enlarged so as to admit a sufficient supply
of water for both purposes. He seeks, therefore, to divert a still
greater quantity of water from the river, and thereby further
impairing riparian rights, if any exist which can be affected by
diverting such a portion of the water from the river into the
canal.
Nor does not bill seek any relief founded on an objection to the
validity of the proceedings to obtain a condemnation of the land.
Nor is there any complaint that the company entered upon other
portions of the land (not included in the condemnation of 1793)
without authority. No injunction is prayed to restrain the
defendant from the use of such land, and this cannot be granted
under the general prayer. No proper case is made for such relief.
It does not come within the scope and object of the will, and would
be inconsistent with the specific relief prayed, which, instead of
restraining the defendant from the use of such lands, seeks to
compel it to enlarge the canal still more, if necessary, to
accomplish the purposes for which the complainant wants the
water.
Nor is it matter of complaint to be made by the appellant that
the company avows a determination to dispose of the surplus water
after it passes through his land for its own benefit and profit.
This cannot in any manner prejudice the complainant. And the bill
only charges that such is the avowed purpose of the defendant when
it can be done without injury to the navigation and in case it can
obtain an enlargement of its charter.
By the appellant's own allegations, therefore, the defendant
disclaims any intention to waste the surplus water unless it
can
Page 33 U. S. 210
be done without prejudice to the navigation nor without
obtaining further permission for that purpose from the competent
authority.
The right of the appellant, therefore, to the relief sought is
narrowed down to the single inquiry whether his claim can be
sustained under the thirteenth section of the charter of 1784 to
the Potomac Company.
That section is as follows:
"Whereas some of the places through which it may be necessary to
conduct the said canals may be convenient for erecting mills,
forges, or other waterworks and the persons, possessors of such
situations, may design to improve the same, and it is the intention
of this act not to interfere with private property but for the
purpose of improving and perfecting the said navigation, be it
enacted that the water or any part thereof conveyed through any
canal or cut made by the said company shall not be used for any
purpose but navigation unless the consent of the proprietors of the
land through which the same shall be led be first had. And the said
president and directors, or a majority of them, are hereby
empowered and directed, if it can be conveniently done to answer
both the purposes of navigation and waterworks aforesaid, to enter
into reasonable agreements with the proprietors of such situation
concerning the just proportion of the expenses of making large
canals or cuts capable of carrying such quantities of water as may
be sufficient for the purposes of navigation and also for any such
waterworks as aforesaid."
We think that the relief sought by the appellant cannot be
granted under this section of the charter. The whole structure of
the act shows that the great and leading purpose for which this
company was incorporated was for the extension of the navigation of
the Potomac. Every antecedent provision of the charter looks to
that object. The president and directors are authorized to employ
persons to cut such canals and erect such locks and perform such
other works as they shall judge necessary for opening, improving,
and extending the navigation of the river. The said river and the
works to be erected thereon in virtue of this act, when completed,
are declared forever thereafter to be esteemed and taken to be
navigable as a public highway, subject to the payment of
certain
Page 33 U. S. 211
tolls, &c. The act declares that it is necessary for the
making of said canal, locks, and other works that provision should
be made for condemning a quantity of land for that purpose. And the
proceedings thereupon are accordingly prescribed by the act where
no voluntary agreement can be made with the owners of the land for
taking a limited quantity against the will of the owner, on payment
of the damages to be assessed by a jury.
After these and some other provisions are made clearly
indicating an intention that the purpose for which the lands were
to be taken was for navigation only, and limited to a quantity
necessary for such public objects, then comes the clause in
question, presenting other purposes and providing for other objects
where circumstances will justify connecting private enterprises
with the leading public purposes of navigation.
But this clause in the act seems studiously to guard against
blending these two objects by any compulsory measures, but to make
it the result of mutual and voluntary arrangement between the
company and the owners of the land upon which the waterworks are to
be erected. It is declared in explicit terms that it is the
intention of the act not to interfere with private property except
for the purpose of improving and perfecting the said navigation,
and that the water shall not be used for any purpose but navigation
unless the consent of the proprietors of the land through which the
canal shall run be first had. It would be a very rigid and forced
construction of this act to place the company at the will and
pleasure of the owners of the adjacent lands, especially if this
should be considered a continual subsisting right, after the canal
has been once completed. If the company is prohibited from using
the water except for navigation without the consent of the owner of
the adjacent land, and yet be obliged to yield to the wishes of
such owner to alter and enlarge the canal, there would be wanting
that mutuality which is essential to the just and reasonable
regulation of all rights. All the legislative provision necessary
was to authorize the company to enter into such agreement with
respect to the use of the water; the owner of the adjacent land
required no such special permission; this is a right incident to
his ownership of the land. The authority on both sides to
Page 33 U. S. 212
make such agreement being established, all was left open to the
mutual arrangement of the parties, like all other contracts. But to
compel one party to consent and leave the other at liberty to
consent or not, at his pleasure, would be a violation of all sound
principles of justice.
Much stress has been laid on the word "directed" as used in the
statute. "The company are hereby empowered and directed, &c."
The word, if standing alone, might imply something mandatory to the
company. But it must be taken with the context and the general
scope and object of the provision in order to ascertain the
intention of the legislature. There was an absolute prohibition to
the company to give their assent to such private use of the water,
and the obvious intention of the act was to remove that prohibition
and place the company in a situation capable of entering into
arrangements with the owners of the adjacent lands respecting the
use of the water for the purpose of carrying on waterworks of
various descriptions when it could be done conveniently. But the
whole structure of the clause shows it was to be a voluntary and
mutual agreement of the parties. It cannot be supposed that if any
compulsory measures were contemplated, the act would have been left
so entirely silent as to the mode and manner in which this was to
be enforced upon the company. If, as we think, it clearly was the
intention of the act that their use of the water should be subject
to the mutual agreement of the parties, no legislative provision
was necessary. The parties having authority to make the agreement,
they could make it in any manner or under such modifications as
they might think proper.
It is not a well founded objection to this construction of the
act that the most apt and appropriate phraseology to convey this
meaning has not been employed. The great object is to ascertain the
intention of the legislature, and there is certainly nothing in the
language used that is repugnant to the construction we have
adopted.
If the right of the appellant to compel the company to make the
agreement was clearly established, it might be within the province
of a court of chancery, to enforce the consummation of such
agreement and carry it into effect. But the entire absence of any
provision looking to compulsory measures as to
Page 33 U. S. 213
the mode and manner in which the agreement is to be made or
executed is a very strong if not conclusive reason to show that no
such right exists, and leads irresistibly to the conclusion that
this is a matter left open for the voluntary arrangement of the
parties.
To consider the company bound to enter into such agreements with
the owners of the adjacent land the whole extent of the canal and
liable to be called upon to alter and enlarge the same at the
pleasure of such owners would be imposing an expense and limitation
upon its chartered rights which ought not to be adopted without the
most explicit and unequivocal provision in its charter, and which
we are very clearly of opinion is not imposed upon the company in
the present case.
The decree of the court below is accordingly
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is ordered, adjudged, and
decreed by this Court that the decree of the said circuit court in
this cause be and the same is hereby affirmed with costs.
