Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885)
Syllabus
U.S. Supreme Court
Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885)Head v. Amoskeag Manufacturing Company
Argued December 16-17, 1884
Decided January 5, 1885
113 U.S. 9
Syllabus
A statute of state authorizing any person to erect and maintain on his own land a water mill and mill dam upon and across any stream not navigable, paying to the owners of lands flowed damages assessed in a judicial proceeding, does not deprive them of their property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States.
This was a writ of error to reverse a judgment of the Supreme Court of the State of New Hampshire against the plaintiff in error upon a petition filed by the defendant in error (a corporation established by the laws of New Hampshire for the manufacture of cotton, woolen, iron, and other materials) for the assessment of damages for the flowing of his land by its mill dam at Amoskeag Falls on the Merrimack River, under the General Mill Act of that state of 1868, c. 20, which is copied in the margin. [Footnote 1]
In the petition filed in the state court, the Amoskeag Manufacturing Company alleged that it had been authorized by its charter to purchase and hold real estate and to erect thereon such dams, canals, mills, buildings, machines, and works as it might deem necessary or useful in carrying on its manufactures and business; that it had purchased the land on both sides of the Merrimack River at Amoskeag Falls, including the river and falls, and had there built mills, dug canals, and established works at the cost of several millions of dollars, and, for the purpose of making the whole power of the river at the falls available for the use of those mills, had constructed a dam across the river; that the construction of the mills and dam to raise the water for working the mills, for creating a reservoir of water, and for equalizing its flow, was of public use and benefit to the people of the state, and necessary for the use of the mills for which it was designed, and that Head, the owner of a tract of land described in the petition, and bounded by the river, claimed
damages for the overflowing thereof by the dam, which the corporation had been unable satisfactorily to adjust, and prayed that it might be determined whether the construction of the mills and dam, and the flowing, if any, of Head's land to the depth and extent that it might or could be flowed thereby were or might be of public use or benefit to the people of the state, and whether they were necessary for the mills, and that damages, past or future, to the land by the construction of the dam might be assessed according to the statute.
At successive stages of the proceedings, by demurrer, by request to the court after the introduction of the evidence upon a trial by jury, and by motion in arrest of judgment, Head objected that the statute was unconstitutional and that the petition could not be maintained because they contemplated the taking of his property for private use in violation of the Fourteenth Amendment of the Constitution of the United States, which declares that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, as well as in violation of the constitution of the state, the Bill of Rights, which declares that all men have certain natural, essential, and inherent rights, among which are the acquiring, possessing and protecting property, and that every member of the community has a right to be protected in the enjoyment of his property. His objections were overruled by the highest court of New Hampshire, and final judgment was entered adjudging that the facts alleged in the petition were true and that, upon payment or tender of the damages assessed by the verdict, with interest, and fifty percent added, making in all the sum of $572.43, the company have the right to erect and maintain the dam and to flow his land forever to the depth and extent to which it might or could be flowed or injured thereby. 56 N.H. 386 and 59 N.H. 332, 563.
Opinions
OF THE STATE OF NEW HAMPSHIRE Syllabus A statute of state authorizing any person to erect and maintain on his own land a water mill and mill dam upon and across any stream not navigable, paying to the owners of lands flowed damages assessed in a judicial proceeding, does not deprive them of their property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. Page 113 U. S. 10 This was a writ of error to reverse a judgment of the Supreme Court of the State of New Hampshire against the plaintiff in error upon a petition filed by the defendant in error (a corporation established by the laws of New Hampshire for the manufacture of cotton, woolen, iron, and other materials) for the assessment of damages for the flowing of his land by its mill dam at Amoskeag Falls on the Merrimack River, under the General Mill Act of that state of 1868, c. 20, which is copied in the margin. [Footnote 1] Page 113 U. S. 11 In the petition filed in the state court, the Amoskeag Manufacturing Company alleged that it had been authorized by its charter to purchase and hold real estate and to erect thereon such dams, canals, mills, buildings, machines, and works as it might deem necessary or useful in carrying on its manufactures and business; that it had purchased the land on both sides of the Merrimack River at Amoskeag Falls, including the river and falls, and had there built mills, dug canals, and established works at the cost of several millions of dollars, and, for the purpose of making the whole power of the river at the falls available for the use of those mills, had constructed a dam across the river; that the construction of the mills and dam to raise the water for working the mills, for creating a reservoir of water, and for equalizing its flow, was of public use and benefit to the people of the state, and necessary for the use of the mills for which it was designed, and that Head, the owner of a tract of land described in the petition, and bounded by the river, claimed Page 113 U. S. 12 damages for the overflowing thereof by the dam, which the corporation had been unable satisfactorily to adjust, and prayed that it might be determined whether the construction of the mills and dam, and the flowing, if any, of Head's land to the depth and extent that it might or could be flowed thereby were or might be of public use or benefit to the people of the state, and whether they were necessary for the mills, and that damages, past or future, to the land by the construction of the dam might be assessed according to the statute. At successive stages of the proceedings, by demurrer, by request to the court after the introduction of the evidence upon a trial by jury, and by motion in arrest of judgment, Head objected that the statute was unconstitutional and that the petition could not be maintained because they contemplated the taking of his property for private use in violation of the Fourteenth Amendment of the Constitution of the United States, which declares that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, as well as in violation of the constitution of the state, the Bill of Rights, which declares that all men have certain natural, essential, and inherent rights, among which are the acquiring, possessing and protecting property, and that every member of the community has a right to be protected in the enjoyment of his property. His objections were overruled by the highest court of New Hampshire, and final judgment was entered adjudging that the facts alleged in the petition were true and that, upon payment or tender of the damages assessed by the verdict, with interest, and fifty percent added, making in all the sum of $572.43, the company have the right to erect and maintain the dam and to flow his land forever to the depth and extent to which it might or could be flowed or injured thereby. 56 N.H. 386 and 59 N.H. 332, 563. Page 113 U. S. 15 MR. JUSTICE GRAY delivered the opinion of the Court. He recited the facts as above stated and continued: The position that the plaintiff in error has been denied the equal protection of the laws was not insisted upon at the argument. The single question presented for decision is whether he has been deprived of his property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. It is only as bearing upon that question that this Court, upon a writ of error to a state court, Page 113 U. S. 16 has jurisdiction to consider whether the statute conforms to the constitution of the state. The charter of the Amoskeag Manufacturing Company, which authorized it to erect and maintain its mills and dam, gave it no right to flow the lands of others. Eastman v. Amoskeag Manufacturing Co., 44 N.H. 143. The proceedings in the state court were had under the General Mill Act of New Hampshire, which enacts that any person or any corporation authorized by its charter so to do may erect or maintain on his or its own land a water mill and mill dam upon any stream not navigable, paying to the owners of lands flowed the damages which, upon a petition filed in court by either party, may be assessed, by a committee or by a jury for the flowing of the lands to the depth and extent to which they may or can be flowed by the dam. N.H. Stat. 1868, c. 20. The plaintiff in error contends that his property has been taken by the State of New Hampshire for private use, and that any taking of private property for private use is without due process of law. The defendant in error contends that the raising of a water power upon a running stream for manufacturing purposes is a public use; that the statute is a constitutional regulation of the rights of riparian owners, and that the remedy given by the statute is due process of law. General mill acts exist in a great majority of the states of the union. Such acts, authorizing lands to be taken or flowed in invitum for the erection and maintenance of mills, existed in Virginia, Maryland, Delaware, and North Carolina, as well as in Massachusetts, New Hampshire, and Rhode Island, before the Declaration of Independence, and exist at this day in each of these states, except Maryland, where they were repealed in 1832. One passed in North Carolina in 1777 has remained upon the statute book of Tennessee. They were enacted in Maine, Kentucky, Missouri, and Arkansas soon after their admission into the Union. They were passed in Indiana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, Minnesota, Mississippi, Alabama, and Florida while they were yet territories, and reenacted after they became states. They were also enacted Page 113 U. S. 17 in Pennsylvania in 1803, in Connecticut in 1864, and more recently in Vermont, Kansas, Oregon, West Virginia, and Georgia, but were afterwards repealed in Georgia. The principal statutes of the several states are collected in the margin. [Footnote 2] Page 113 U. S. 18 In most of those states, their validity has been assumed without dispute, and they were never adjudged to be invalid anywhere until since 1870, and then in three states only, and for incompatibility with their respective constitutions. Loughbridge v. Harris (1871), 42 Ga. 500; Tyler v. Beacher (1871), 44 Vt. 648; Ryerson v. Brown (1877), 35 Mich. 333. The earlier cases in Tennessee, Alabama, and New York, containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerg. 40; Memphis Railroad Co. v. Memphis, 4 Coldwell 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 Ala. 288; Hay v. Cohoes Co., 3 Barb. 42, 47, and 2 N.Y. 159. The principle objects, no doubt, of the earlier acts were grist mills, and it has been generally admitted, even by those courts Page 113 U. S. 19 which have entertained the most restricted view of the legislative power, that a grist mill which grinds for all comers at tolls fixed by law is for a public use. See also Blair v. Cuming County, 111 U. S. 363. But the statutes of many states are not so limited, either in terms or in the usage under them. In Massachusetts, for more than half a century, the mill acts have been extended to mills for any manufacturing purpose. Mass.Stat. 1824, c. 153; Wolcott Woolen Manufacturing Co. v. Upham, 5 Pick. 292; Palmer Co. v. Ferrill, 17 Pick. 58, 65. And throughout New England as well as in Pennsylvania, Virginia, North Carolina, Kentucky, and many of the western states, the statutes are equally comprehensive. It has been held in many cases of high authority that special acts of incorporation granted by the legislature for the establishment of dams to increase and improve the water power of rivers and navigable waters for mechanical and manufacturing purposes are for a public use. Scudder v. Trenton Delaware Falls Co., Saxton 694, 728-729; Boston & Rocbury Mill Corporation v. Newman, 12 Pick. 467; Hazen v. Essex Co., 12 Cush. 475; Commonwealth v. Essex Co., 13 Gray 239, 251-252; Hankins v. Lawrence, 8 Blackford 266; Great Falls Manufacturing Co. v. Fernald, 47 N.H. 444. In some of those cases, the authority conferred by general mill acts upon any owner of land upon a stream to erect and maintain a mill on his own land and to flow the land of others for manufacturing purposes has been considered as resting on the right of eminent domain by reason of the advantages inuring to the public from the improvement of water power and the promotion of manufactures. See also Holyoke Co. v. Lyman, 15 Wall. 500, 82 U. S. 506-507; Beekman v. Saratoga & Schenectady Railroad, 3 Paige 45, 73; Talbot v. Hudson, 16 Gray 417, 426. And the validity of general mill acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions. Jordan v. Woodward, 40 Me. 317; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 78; Venard v. Cross, 8 Kan. 248; Harding v. Funk, 8 Kan. 315; Miller v. Troost, 14 Minn. Page 113 U. S. 20 282 (Gil. 282); Newcomb v. Smith, 1 Chandler 71; Fisher v. Horicon Co., 10 Wis. 351; Babb v. Mackey, 10 Wis. 371; Burnham v. Thompson, 35 Iowa, 421. In New Hampshire, from which the present case comes, the legislature of the province in 1718 passed an act (for the most part copied from the Massachusetts act of 1714) authorizing the owners of mills to flow lands of others, paying damages assessed by a jury. The act of 1718 continued in force until the adoption of the first constitution of the state in 1784, and afterwards until June 20, 1792, and was then repealed upon a general revision of the statutes shortly before the state constitution of 1792 took effect. The provisions of the bill of rights, on which the plaintiff in error relied in the court below, were exactly alike in the two constitutions. Special acts authorizing the flowing of lands upon the payment of damages were passed afterwards from time to time; among others, the statute of July 8, 1862, authorizing the Great Falls Manufacturing Company to erect a dam upon Salmon Falls River, which was adjudged by the Supreme Judicial Court of New Hampshire, in 1867, in an opinion delivered by Chief Justice Perley, to be consistent with the constitution of that state because the taking authorized was for a public use. Great Falls Manufacturing Co. v. Fernald, 47 N.H. 444. The statute now in question, the first general mill act passed by the legislature of the state, was passed and took effect on July 3, 1868; was held in Ash v. Cummings, 50 N.H. 591, after elaborate argument against it, to be constitutional, upon the ground of the decision in Great Falls Manufacturing Co. v. Fernald, and was enforced without question in Pollard v. Moore, 51 N.H. 188, and in Town v. Faulkner, 56 N.H. 255. In the case at bar and in another case since, the state court held its constitutionality to be settled by the former decisions. Amoskeag Manufacturing Co. v. Head, 56 N.H. 386, and 59 N.H. 332, 563; Same v. Worcester, 60 N.H. 522. The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself Page 113 U. S. 21 at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use in the constitutional sense is so important and far reaching that it does not become this Court to express an opinion upon it when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed with a due regard to the interests of all and to the public good is within the constitutional power of the legislature. When property in which several persons have a common interest cannot be fully and beneficially enjoyed in its existing condition, the law often provides a way in which they may compel one another to submit to measures necessary to secure its beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified. In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition upon which the court, if the land cannot be equally divided, will order owelty to be paid or, in many states under statutes the constitutionality of which has never been denied will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money or else order the whole estate to be sold. King v. Reed, 11 Gray 490; Bentley v. Long Dock Co., 1 McCarter 480, S.C. on appeal nom. Manners v. Bentley, 2 McCarter 501; Mead v. Mitchell, 17 N.Y. 210; Richardson v. Monson, 23 Conn. 94. Water rights held in common, incapable of partition at law, may be the subject of partition in equity either by apportioning the time and extent of use or by a sale of the right and a division of the proceeds. Smith v. Smith, 10 Paige 470; DeWitt v. Harvey, 4 Gray 486; McGillivray v. Evans, 27 Cal. 92. At the common law, as Lord Coke tells us, "If two tenants in common or joint tenants be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the Page 113 U. S. 22 other will not, he that is willing shall have a writ de reparatione facienda, and the writ saith, ad reparationem et sustentationem ejusdem domus teneantur, whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co.Litt. 200 b; 4 Kent, Comm. 370. In the same spirit, the statutes of Massachusetts for 175 years have provided that any tenant in common of a mill in need of repair may notify a general meeting of all the owners for consultation, and that if anyone refuses to attend or to agree with the majority, or to pay his share, the majority may cause the repairs to be made and recover his share of the expenses out of the mill or its profits or earnings. Mass.Prov.Stat. 1709, c. 3, 1 Prov.Laws (state ed.) 641, and Anc.Chart. 388; Stat. 1795, c. 74, §§ 5-7; Rev.Stat. 1836, c. 116, §§ 44-58; Gen.Stat. 1860, c. 149, §§ 53-64; Pub.Stat. 1882, c. 190, §§ 59-70. And the statutes of New Hampshire, for more than eighty years, have made provision for compelling the repair of mills in such cases. Roberts v. Peavey, 7 Fost. 477, 493. The statutes which have long existed in many states authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole tract, by cutting ditches or otherwise and to assess and levy the amount of the expense upon all the proprietors in proportion to the benefits received have been often upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Burt, 22 Pick. 422; Wright v. Boston, 9 Cush. 233, 241; Sherman v. Tobey, 3 Allen 7; Lowell v. Boston, 111 Mass. 454, 469; French v. Kirkland, 1 Paige 117; People v. Brooklyn, 4 N.Y. 419, 438; Coster v. Tidewater Co., 3 C. E. Green 54, 68, 518, 531; O'Reiley v. Kankakee Valley Draining Co., 32 Ind. 169. By the maritime law, based, as Lord Tenterden observed, on the consideration that the actual employment of ships is "a matter not merely of private advantage to the owners, but of public benefit to the state," and recognized in the decisions Page 113 U. S. 23 and the rules of this Court, courts of admiralty may, when the part owners of a ship cannot agree upon her employment, authorize the majority to send her to sea on giving security to the dissenting minority to bring back and restore the ship or, if she be lost, to pay them the value of their shares, and in such case the minority can neither recover part of the profits of the voyage nor compensation for the use of the ship. Abbott on Shipping, pt. 1, c. 3, §§ 2, 3; The Steamboat Orleans, 11 Pet. 175, 36 U. S. 183; Rule 20 in admiralty, 3 How. vii; The Marengo, 1 Lowell 52. If the part owners are equally divided in opinion upon the manner of employing the ship, then, according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Am.Jur. 486; S.C. 3 Wall. Jr. 395. See also Story on Partnership § 439; The Nelly Schneider, 3 P.D. 152. But none of the cases thus put by way of illustration so strongly calls for the interposition of the law as the case before us. The right to the use of running water is publici juris, and common to all the proprietors of the bed and banks of the stream from its source to its outlet. Each has a right to the reasonable use of the water as it flows past his land not interfering with a like reasonable use by those above or below him. One reasonable use of the water is the use of the power, inherent in the fall of the stream and the force of the current, to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus dammed up by one riparian proprietor spread over the lands of others, they could at common law bring successive actions against him for the injury so done them, or even have the dam abated. Before the mill acts, therefore, it was often impossible for a riparian proprietor to use the water power at all, without the consent of those above him. The purpose of these statutes is to enable any riparian proprietor to erect a mill and use the water power of the stream, provided he does not interfere with an earlier exercise by another of a like right or with any right of the public, and to substitute, for the common law remedies Page 113 U. S. 24 of repeated actions for damages and prostration of the dam, a new form of remedy by which anyone whose land is flowed can have assessed, once for all, either in a gross sum or by way of annual damages, adequate compensation for the injury. This view of the principle upon which general mill acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the Supreme Judicial Court of Massachusetts. In delivering the opinion of the court in a case decided in 1832, he said: "The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the provincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil, and in ascertaining their extent, it will be useful to inquire into the principle upon which they are founded. We think they will be found to rest for their justification partly upon the interest which the community at large has in the use and employment of mills and partly upon the nature of the property, which is often so situated that it could not be beneficially used without the aid of this power. A stream of water often runs through the lands of several proprietors. One may have a sufficient mill site on his own land, with ample space on his own land for a mill pond or reservoir, but yet, from the operation of the well known physical law that fluids will seek and find a level, he cannot use his own property without flowing the water back more or less on the lands of some other proprietor. We think the power given by statute was intended to apply to such cases, and that the legislature meant to provide that as the public interest in such case coincides with that of the mill owner, and as the mill owner and the owner of lands to be flowed cannot both enjoy their full rights without some interference, the latter shall yield to the former so far that the former may keep up his mill and head of water, notwithstanding the damage done to the latter, upon payment of an equitable compensation for the real damage sustained, to be ascertained in the mode provided by the statute." "From this view of the object and purpose of the statute, we think it quite manifest Page 113 U. S. 25 that it was designed to provide for the most useful and beneficial occupation and enjoyment of natural streams and watercourses, where the absolute right of each proprietor to use his own land and water privileges at his own pleasure cannot be fully enjoyed, and one must of necessity in some degree yield to the other." Fiske v. Framingham Manufacturing Co., 12 Pick. 68, 70-72. In another case, decided almost twenty years later, he said: "The relative rights of land owners and mill owners are founded on the established rule of the common law that every proprietor through whose territory a current of water flows in its course toward the sea has an equal right to the use of it for all reasonable and beneficial purposes, including the power of such stream for driving mills, subject to a like reasonable and beneficial use by the proprietors above him and below him on the same stream. Consequently no one can deprive another of his equal right and beneficial use by corrupting the stream by wholly diverting it or stopping it from the proprietor below him or raise it artificially, so as to cause it to flow back on the land of the proprietor above. This rule, in this commonwealth, is slightly modified by the mill acts by the well known provision that when a proprietor erects a dam on his own land and the effect is, by the necessary operation of natural laws, that the water sets back upon some land of the proprietor above -- a consequence which he may not propose as a distinct purpose, but cannot prevent -- he shall not thereby be regarded as committing a tort and obliged to prostrate his dam, but may keep up his dam, paying annual or gross damages, the equitable assessment of which is provided for by the acts. It is not a right to take and use the land of the proprietor above against his will, but it is an authority to use his own land and water privilege to his own advantage and for the benefit of the community. It is a provision by law for regulating the rights of proprietors on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole, to promote and secure their common rights in it." Bates v. Weymouth Iron Co., 8 Cush. 548, 552-553. Other opinions of Chief Justice Shaw illustrate the same view. Page 113 U. S. 26 Williams v. Nelson, 23 Pick. 141, 143; French v. Braintree Manufacturing Co., 23 Pick. 216, 218-221; Cary v. Daniels, 8 Met. 466, 476-477; Murdock v. Stickney, 8 Cush. 113, 116; Gould v. Boston Duck Co., 13 Gray 442, 450. It finds more or less distinct expression in other authorities. Lowell v. Boston, 111 Mass. 464-466; United States v. Ames, 1 Woodb. & in. 76, 88; Waddy v. Johnson, 5 Iredell 333, 339; Jones v. Skinner, 61 Me. 25, 28; Olmstead v. Camp, 33 Conn. 547, 550; Chief Justice Redfield, in 12 Am.Law Reg. (N.S.) 498-500. And no case has been cited in which it has been considered and rejected. Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other states maintaining the validity of general mill acts as taking private property for public use, in the strict constitutional meaning of that phrase, the statute under which the Amoskeag Manufacturing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which without some such regulation could not be beneficially used. The statute does not authorize new mills to be erected to the detriment of existing mills and mill privileges. And by providing for an assessment of full compensation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166. Being a constitutional exercise of legislative power and providing a suitable remedy by trial in the regular course of justice to recover compensation for the injury to the land of the plaintiff in error, it has not deprived him of his property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. Walker v. Sauvinet, 92 U. S. 90; Davidson v. New Orleans, 96 U. S. 97; Hurtado v. California, 110 U. S. 516; Hagar v. Reclamation Dist., 111 U. S. 701. Judgment affirmed. MR. JUSTICE BLATCHFORD did not sit in this case or take any part in its decision. [Footnote 1] "AN ACT FOR THE ENCOURAGEMENT OF MANUFACTURES" "SEC. 1. Any person, or any corporation authorized by its charter so to do, may erect and maintain on his or its own land, or upon land of another with his consent, a water mill, and dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same, for its use and of mills below, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed." "SEC. 2. If the land of any person shall be overflowed, drained, or otherwise injured by the use of such dam, and said damage or injury shall not, within thirty days after due notice thereof, be satisfactorily adjusted by the party erecting or maintaining said dam, either party may apply by petition to the supreme judicial court, in the county or counties where such damage or grievance arises, to have the damage that may have been or may be done thereby, assessed; which petition shall set out the title and description of the premises damaged, the right by reason whereof said grievance arises, the location of the dam, and extent of the damages that may be occasioned thereby; and said court, after reasonable notice to all persons interested, shall, unless the parties agree upon the judgment that shall be rendered, refer said petition to a committee of three disinterested persons, to be appointed by said court, to determine in relation to the matters set forth therein." "SEC. 3. The committee shall give such notice to the parties as shall be ordered by said court; shall hear the parties and view the premises; and, if they shall be of opinion that the flowing or draining of said land, to the depth and extent that the same may or can be flowed by said dam, is or may be of public use or benefit to the people of this state, and that the same is necessary for the use of the mill or mills for which said dam was designed, they shall estimate the damages, and make report to the said court at the next term thereof after said view and estimate. Upon the return of the report of said committee, any person interested therein may object to the acceptance of the same for any irregularity or improper conduct of said committee; and said court may set aside said report for any just and reasonable cause, and, if required, shall inquire for itself whether the erection of said dam is of public use or benefit, any finding of the committee upon that point notwithstanding; and, if the court shall be of opinion that the erection of said dam is not of public use or benefit, the petition shall be dismissed. But if the report shall be accepted and established, the court shall render judgment thereon, after adding fifty per cent. to the estimate of damage; which judgment shall be final, and execution shall issue thereon. Before the reference of such petition to the committee, if either party shall so elect, said court shall direct an issue to the jury, to try the facts alleged in the said petition, and assess the damages; and judgment rendered on the verdict of such jury, with fifty percent added, shall be final, and said court may award costs to either party at its discretion." "SEC. 4. No person or corporation shall derive any title from said proceedings, or be discharged from any liability in relation to said premises, until he or it has paid or tendered to the person aggrieved or damaged the amount of such adverse judgment." "SEC. 5. This act shall in no way affect existing suits, nor any mill of other persons lawfully existing on the same stream, nor any mill site or mill privilege of other persons on which a mill dam has been lawfully erected and used, nor the right of any owner of such mill, mill site, or mill privilege, unless the right to maintain on such lastmentioned site or privilege shall have been lost or defeated by abandonment or otherwise; neither shall it affect the right of a town in any highway or bridge which said town may by law be liable to keep in repair: provided, however, that the provisions of this act shall not be applicable to any navigable waters in this state." "SEC. 6. This act shall take effect from and after its passage." Approved July 3, 1868. [Footnote 2] For convenience of reference, the names of the states are arranged in alphabetical order. The territorial acts of Indiana and Illinois not being in the Library of Congress, the citations of those acts are taken from Gould, Waters, § 616, and notes. ALABAMA. Terr.St. 1811, 1812, Toulmin's Dig. 1823, tit. 45; Clay's Dig. 1843, p. 376; Code 1852, §§ 20892115; Rev.Code 1867, §§ 24812508; Code 1876, §§ 35553579. ARKANSAS. Rev.St. 1837, c. 98; Dig. 1846, c. 107; Dig. 1858, c. 114; Gantt's Dig. 1873, c. 95. CONNECTICUT. St. 1864, c. 26; Gen.St. 1866, tit. 1, c. 16; Gen.St. 1875, tit. 19, c. 17, pt. 6. DELAWARE. Prov.St. 1719, 1760, 1773, 1 Laws 170097, p. 535, app. pp. 53, 72; Rev.St. 1852, c. 61; St. 1859, c. 538; Rev.Code 1874, c. 61. FLORIDA. Terr.St. 1827, 1829, Duval's Compilation, pp. 5155; Thompson's Dig. 1847, c. 10; McClellan's Dig. 1881, c. 152. GEORGIA. St. 1869, c. 98. Repealed by Code of 1882, § 3018. ILLINOIS. 2 Terr.Laws 1815, p. 456; St. 1819, p. 265; Rev.Code 1827, p. 297; Rev.St. 1845, c. 71; Rev.St. 1869, c. 71; Rev.St. 1874, c. 92; Rev.St. 1880, c. 92. INDIANA. Terr.St. 1807, p. 194; Rev.Laws 1824, c. 117; Rev.Laws 1831, c. 1; Rev.St. 1838, c. 1; Rev.St. 1842, c. 48, art. 5; Rev.St. 1852, pt. 2, art. 41; Rev.St. 1881, §§ 882 et seq. IOWA. Terr.St. 1839, p. 343, 1843, p. 437; St. 1885, c. 92; Rev.St. 1860, tit. 11, c. 54, art. 4; Code 1873, tit. 10, c. 1; Code 1880, tit. 10, c. 1. KANSAS. St. 1867, c.87; Gen.St. 1868, c. 66; Comp.Laws 1879, c. 66. KENTUCKY. St. February 22, 1797, 1 Litt.St. 606; 2 Litt. & S.Dig. 1822, p. 933; Rev.St. 1852, c. 67; Gen.St. 1883, c. 77. MAINE. St. 1821, c. 45; Rev.St. 1840, c. 126; Rev.St. 1857, c. 92; Rev.St. 1871, c. 92; Rev.St. 1883, c. 92. MARYLAND. Prov.St. 1719, c. 15, Bacon's Laws 1765, and 1 Kilty's Laws. Repealed by St. 1832, c. 56. MASSACHUSETTS. Prov.St. 1714, c. 15, 1 Prov.Laws (State Ed.) 729, and Anc.Chart. 404; St. 1795, c. 74, passed February 27, 1796; 1824, c. 153, February 26, 1825; 1825, c. 109, February 28, 1826; 1829, c. 122, March 12, 1830; Rev.St. 1836, c. 116; Gen.St. 1860, c. 149; Pub.St. 1882, c. 190. MICHIGAN. Terr.St. 1824, 1828, 2 Terr.Laws, 192, 699; St. 1865, c. 304; Comp.Laws 1872, c. 221; St. 1873, c. 196. MINNESOTA. Terr.St. 1857, Pub.St. 184958, c. 129; Rev.St. 1866, c. 31; Gen.St. 1878, c. 31. MISSISSIPPI. Terr.St. 1811, 1812, p. 344; Rev.Code 1824, c. 65; Rev.Code 1871, c. 34; Rev.Code 1880, c. 27. MISSOURI. St. 1823, 2 Rev.St. 1825, p. 587; St. 1835, p. 405; Rev.St. 1845, c. 121; Rev.St. 1855, c. 112; Gen.St. 1865, c. 101; Wagner's St. 1872, c. 98; Rev.St. 1879, c. 132. NEBRASKA. Terr.St. 186162, p. 71; Rev.St. 1866, c. 36; Gen.St. 1873, c. 44; Comp.St. 1881, c. 57. NEW HAMPSHIRE. Prov.St. 1718, Prov.Laws (Ed. 1771), c. 60; St. 1868, c. 20; Gen.Laws 1878, c. 190. NORTH CAROLINA. Prov.St. 1758, c. 5, Rev. 1773, p. 219; St. 1777, c. 23, Laws 1791, p. 343; St. 1809, c. 15; 1813, c. 19; Rev.Laws 1821, c. 122, 773, 863; Rev.St. 1837, c. 74; Rev.Code 1854, c. 71; Battle's Revisal 1873, c. 72. OREGON. St. December 19, 1865, Gen.Laws 184372, p. 679. PENNSYLVANIA. St. March 23, 1803, 4 Smith's Laws, p. 20; Prud.Dig. (10th Ed.) p. 1065. RHODE ISLAND. Col.St. 1734, Laws 1744, p. 180; Public Laws 1798, p. 504; Rev.St. 1857, c. 88; Pub.St. 1882, c. 104. TENNESSEE. Rev.Laws 1809, c. 23; Compilation 1836, p. 486; Code 1858, §§ 19081915; Code 1884, §§ 26512661. VERMONT. St. 1866, c. 12; 1867, c. 27; 1869, c. 27; Gen.St. 1870, app. pp. 906, 953, 1025; Rev.Laws 1880, c. 148, §§ 32153224. VIRGINIA. Col.St. 1667, c. 4, 2 Henn.St. 260; Col. St. 1705, c. 41, 3 Henn. 401; Col.St. 1745, c. 11, 5 Henn. 359; St. 1785, c. 82, 12 Henn. 187; Rev.Code 1814, c. 105; Rev.Code 1819, c. 235; Code 1849, c. 63; Code 1873, c. 63. WEST VIRGINIA. Code 1870, c. 44, §§ 2936. WISCONSIN. Terr.St. 1840, c. 48; Rev.St. 1858, c. 56; Rev.St. 1878, c. 146.
U.S. Supreme Court
Head v. Amoskeag Mfg. Co., 113 U.S. 9 (1885) Head v. Amoskeag Manufacturing Company Argued December 16-17, 1884 Decided January 5, 1885 113 U.S. 9 I N ERROR TO THE SUPREME COURTOF THE STATE OF NEW HAMPSHIRE Syllabus A statute of state authorizing any person to erect and maintain on his own land a water mill and mill dam upon and across any stream not navigable, paying to the owners of lands flowed damages assessed in a judicial proceeding, does not deprive them of their property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. Page 113 U. S. 10 This was a writ of error to reverse a judgment of the Supreme Court of the State of New Hampshire against the plaintiff in error upon a petition filed by the defendant in error (a corporation established by the laws of New Hampshire for the manufacture of cotton, woolen, iron, and other materials) for the assessment of damages for the flowing of his land by its mill dam at Amoskeag Falls on the Merrimack River, under the General Mill Act of that state of 1868, c. 20, which is copied in the margin. [Footnote 1] Page 113 U. S. 11 In the petition filed in the state court, the Amoskeag Manufacturing Company alleged that it had been authorized by its charter to purchase and hold real estate and to erect thereon such dams, canals, mills, buildings, machines, and works as it might deem necessary or useful in carrying on its manufactures and business; that it had purchased the land on both sides of the Merrimack River at Amoskeag Falls, including the river and falls, and had there built mills, dug canals, and established works at the cost of several millions of dollars, and, for the purpose of making the whole power of the river at the falls available for the use of those mills, had constructed a dam across the river; that the construction of the mills and dam to raise the water for working the mills, for creating a reservoir of water, and for equalizing its flow, was of public use and benefit to the people of the state, and necessary for the use of the mills for which it was designed, and that Head, the owner of a tract of land described in the petition, and bounded by the river, claimed Page 113 U. S. 12 damages for the overflowing thereof by the dam, which the corporation had been unable satisfactorily to adjust, and prayed that it might be determined whether the construction of the mills and dam, and the flowing, if any, of Head's land to the depth and extent that it might or could be flowed thereby were or might be of public use or benefit to the people of the state, and whether they were necessary for the mills, and that damages, past or future, to the land by the construction of the dam might be assessed according to the statute. At successive stages of the proceedings, by demurrer, by request to the court after the introduction of the evidence upon a trial by jury, and by motion in arrest of judgment, Head objected that the statute was unconstitutional and that the petition could not be maintained because they contemplated the taking of his property for private use in violation of the Fourteenth Amendment of the Constitution of the United States, which declares that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, as well as in violation of the constitution of the state, the Bill of Rights, which declares that all men have certain natural, essential, and inherent rights, among which are the acquiring, possessing and protecting property, and that every member of the community has a right to be protected in the enjoyment of his property. His objections were overruled by the highest court of New Hampshire, and final judgment was entered adjudging that the facts alleged in the petition were true and that, upon payment or tender of the damages assessed by the verdict, with interest, and fifty percent added, making in all the sum of $572.43, the company have the right to erect and maintain the dam and to flow his land forever to the depth and extent to which it might or could be flowed or injured thereby. 56 N.H. 386 and 59 N.H. 332, 563. Page 113 U. S. 15 MR. JUSTICE GRAY delivered the opinion of the Court. He recited the facts as above stated and continued: The position that the plaintiff in error has been denied the equal protection of the laws was not insisted upon at the argument. The single question presented for decision is whether he has been deprived of his property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. It is only as bearing upon that question that this Court, upon a writ of error to a state court, Page 113 U. S. 16 has jurisdiction to consider whether the statute conforms to the constitution of the state. The charter of the Amoskeag Manufacturing Company, which authorized it to erect and maintain its mills and dam, gave it no right to flow the lands of others. Eastman v. Amoskeag Manufacturing Co., 44 N.H. 143. The proceedings in the state court were had under the General Mill Act of New Hampshire, which enacts that any person or any corporation authorized by its charter so to do may erect or maintain on his or its own land a water mill and mill dam upon any stream not navigable, paying to the owners of lands flowed the damages which, upon a petition filed in court by either party, may be assessed, by a committee or by a jury for the flowing of the lands to the depth and extent to which they may or can be flowed by the dam. N.H. Stat. 1868, c. 20. The plaintiff in error contends that his property has been taken by the State of New Hampshire for private use, and that any taking of private property for private use is without due process of law. The defendant in error contends that the raising of a water power upon a running stream for manufacturing purposes is a public use; that the statute is a constitutional regulation of the rights of riparian owners, and that the remedy given by the statute is due process of law. General mill acts exist in a great majority of the states of the union. Such acts, authorizing lands to be taken or flowed in invitum for the erection and maintenance of mills, existed in Virginia, Maryland, Delaware, and North Carolina, as well as in Massachusetts, New Hampshire, and Rhode Island, before the Declaration of Independence, and exist at this day in each of these states, except Maryland, where they were repealed in 1832. One passed in North Carolina in 1777 has remained upon the statute book of Tennessee. They were enacted in Maine, Kentucky, Missouri, and Arkansas soon after their admission into the Union. They were passed in Indiana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, Minnesota, Mississippi, Alabama, and Florida while they were yet territories, and reenacted after they became states. They were also enacted Page 113 U. S. 17 in Pennsylvania in 1803, in Connecticut in 1864, and more recently in Vermont, Kansas, Oregon, West Virginia, and Georgia, but were afterwards repealed in Georgia. The principal statutes of the several states are collected in the margin. [Footnote 2] Page 113 U. S. 18 In most of those states, their validity has been assumed without dispute, and they were never adjudged to be invalid anywhere until since 1870, and then in three states only, and for incompatibility with their respective constitutions. Loughbridge v. Harris (1871), 42 Ga. 500; Tyler v. Beacher (1871), 44 Vt. 648; Ryerson v. Brown (1877), 35 Mich. 333. The earlier cases in Tennessee, Alabama, and New York, containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerg. 40; Memphis Railroad Co. v. Memphis, 4 Coldwell 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 Ala. 288; Hay v. Cohoes Co., 3 Barb. 42, 47, and 2 N.Y. 159. The principle objects, no doubt, of the earlier acts were grist mills, and it has been generally admitted, even by those courts Page 113 U. S. 19 which have entertained the most restricted view of the legislative power, that a grist mill which grinds for all comers at tolls fixed by law is for a public use. See also Blair v. Cuming County, 111 U. S. 363. But the statutes of many states are not so limited, either in terms or in the usage under them. In Massachusetts, for more than half a century, the mill acts have been extended to mills for any manufacturing purpose. Mass.Stat. 1824, c. 153; Wolcott Woolen Manufacturing Co. v. Upham, 5 Pick. 292; Palmer Co. v. Ferrill, 17 Pick. 58, 65. And throughout New England as well as in Pennsylvania, Virginia, North Carolina, Kentucky, and many of the western states, the statutes are equally comprehensive. It has been held in many cases of high authority that special acts of incorporation granted by the legislature for the establishment of dams to increase and improve the water power of rivers and navigable waters for mechanical and manufacturing purposes are for a public use. Scudder v. Trenton Delaware Falls Co., Saxton 694, 728-729; Boston & Rocbury Mill Corporation v. Newman, 12 Pick. 467; Hazen v. Essex Co., 12 Cush. 475; Commonwealth v. Essex Co., 13 Gray 239, 251-252; Hankins v. Lawrence, 8 Blackford 266; Great Falls Manufacturing Co. v. Fernald, 47 N.H. 444. In some of those cases, the authority conferred by general mill acts upon any owner of land upon a stream to erect and maintain a mill on his own land and to flow the land of others for manufacturing purposes has been considered as resting on the right of eminent domain by reason of the advantages inuring to the public from the improvement of water power and the promotion of manufactures. See also Holyoke Co. v. Lyman, 15 Wall. 500, 82 U. S. 506-507; Beekman v. Saratoga & Schenectady Railroad, 3 Paige 45, 73; Talbot v. Hudson, 16 Gray 417, 426. And the validity of general mill acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions. Jordan v. Woodward, 40 Me. 317; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 78; Venard v. Cross, 8 Kan. 248; Harding v. Funk, 8 Kan. 315; Miller v. Troost, 14 Minn. Page 113 U. S. 20 282 (Gil. 282); Newcomb v. Smith, 1 Chandler 71; Fisher v. Horicon Co., 10 Wis. 351; Babb v. Mackey, 10 Wis. 371; Burnham v. Thompson, 35 Iowa, 421. In New Hampshire, from which the present case comes, the legislature of the province in 1718 passed an act (for the most part copied from the Massachusetts act of 1714) authorizing the owners of mills to flow lands of others, paying damages assessed by a jury. The act of 1718 continued in force until the adoption of the first constitution of the state in 1784, and afterwards until June 20, 1792, and was then repealed upon a general revision of the statutes shortly before the state constitution of 1792 took effect. The provisions of the bill of rights, on which the plaintiff in error relied in the court below, were exactly alike in the two constitutions. Special acts authorizing the flowing of lands upon the payment of damages were passed afterwards from time to time; among others, the statute of July 8, 1862, authorizing the Great Falls Manufacturing Company to erect a dam upon Salmon Falls River, which was adjudged by the Supreme Judicial Court of New Hampshire, in 1867, in an opinion delivered by Chief Justice Perley, to be consistent with the constitution of that state because the taking authorized was for a public use. Great Falls Manufacturing Co. v. Fernald, 47 N.H. 444. The statute now in question, the first general mill act passed by the legislature of the state, was passed and took effect on July 3, 1868; was held in Ash v. Cummings, 50 N.H. 591, after elaborate argument against it, to be constitutional, upon the ground of the decision in Great Falls Manufacturing Co. v. Fernald, and was enforced without question in Pollard v. Moore, 51 N.H. 188, and in Town v. Faulkner, 56 N.H. 255. In the case at bar and in another case since, the state court held its constitutionality to be settled by the former decisions. Amoskeag Manufacturing Co. v. Head, 56 N.H. 386, and 59 N.H. 332, 563; Same v. Worcester, 60 N.H. 522. The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself Page 113 U. S. 21 at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use in the constitutional sense is so important and far reaching that it does not become this Court to express an opinion upon it when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed with a due regard to the interests of all and to the public good is within the constitutional power of the legislature. When property in which several persons have a common interest cannot be fully and beneficially enjoyed in its existing condition, the law often provides a way in which they may compel one another to submit to measures necessary to secure its beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified. In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition upon which the court, if the land cannot be equally divided, will order owelty to be paid or, in many states under statutes the constitutionality of which has never been denied will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money or else order the whole estate to be sold. King v. Reed, 11 Gray 490; Bentley v. Long Dock Co., 1 McCarter 480, S.C. on appeal nom. Manners v. Bentley, 2 McCarter 501; Mead v. Mitchell, 17 N.Y. 210; Richardson v. Monson, 23 Conn. 94. Water rights held in common, incapable of partition at law, may be the subject of partition in equity either by apportioning the time and extent of use or by a sale of the right and a division of the proceeds. Smith v. Smith, 10 Paige 470; DeWitt v. Harvey, 4 Gray 486; McGillivray v. Evans, 27 Cal. 92. At the common law, as Lord Coke tells us, "If two tenants in common or joint tenants be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the Page 113 U. S. 22 other will not, he that is willing shall have a writ de reparatione facienda, and the writ saith, ad reparationem et sustentationem ejusdem domus teneantur, whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co.Litt. 200 b; 4 Kent, Comm. 370. In the same spirit, the statutes of Massachusetts for 175 years have provided that any tenant in common of a mill in need of repair may notify a general meeting of all the owners for consultation, and that if anyone refuses to attend or to agree with the majority, or to pay his share, the majority may cause the repairs to be made and recover his share of the expenses out of the mill or its profits or earnings. Mass.Prov.Stat. 1709, c. 3, 1 Prov.Laws (state ed.) 641, and Anc.Chart. 388; Stat. 1795, c. 74, §§ 5-7; Rev.Stat. 1836, c. 116, §§ 44-58; Gen.Stat. 1860, c. 149, §§ 53-64; Pub.Stat. 1882, c. 190, §§ 59-70. And the statutes of New Hampshire, for more than eighty years, have made provision for compelling the repair of mills in such cases. Roberts v. Peavey, 7 Fost. 477, 493. The statutes which have long existed in many states authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole tract, by cutting ditches or otherwise and to assess and levy the amount of the expense upon all the proprietors in proportion to the benefits received have been often upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Burt, 22 Pick. 422; Wright v. Boston, 9 Cush. 233, 241; Sherman v. Tobey, 3 Allen 7; Lowell v. Boston, 111 Mass. 454, 469; French v. Kirkland, 1 Paige 117; People v. Brooklyn, 4 N.Y. 419, 438; Coster v. Tidewater Co., 3 C. E. Green 54, 68, 518, 531; O'Reiley v. Kankakee Valley Draining Co., 32 Ind. 169. By the maritime law, based, as Lord Tenterden observed, on the consideration that the actual employment of ships is "a matter not merely of private advantage to the owners, but of public benefit to the state," and recognized in the decisions Page 113 U. S. 23 and the rules of this Court, courts of admiralty may, when the part owners of a ship cannot agree upon her employment, authorize the majority to send her to sea on giving security to the dissenting minority to bring back and restore the ship or, if she be lost, to pay them the value of their shares, and in such case the minority can neither recover part of the profits of the voyage nor compensation for the use of the ship. Abbott on Shipping, pt. 1, c. 3, §§ 2, 3; The Steamboat Orleans, 11 Pet. 175, 36 U. S. 183; Rule 20 in admiralty, 3 How. vii; The Marengo, 1 Lowell 52. If the part owners are equally divided in opinion upon the manner of employing the ship, then, according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Am.Jur. 486; S.C. 3 Wall. Jr. 395. See also Story on Partnership § 439; The Nelly Schneider, 3 P.D. 152. But none of the cases thus put by way of illustration so strongly calls for the interposition of the law as the case before us. The right to the use of running water is publici juris, and common to all the proprietors of the bed and banks of the stream from its source to its outlet. Each has a right to the reasonable use of the water as it flows past his land not interfering with a like reasonable use by those above or below him. One reasonable use of the water is the use of the power, inherent in the fall of the stream and the force of the current, to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus dammed up by one riparian proprietor spread over the lands of others, they could at common law bring successive actions against him for the injury so done them, or even have the dam abated. Before the mill acts, therefore, it was often impossible for a riparian proprietor to use the water power at all, without the consent of those above him. The purpose of these statutes is to enable any riparian proprietor to erect a mill and use the water power of the stream, provided he does not interfere with an earlier exercise by another of a like right or with any right of the public, and to substitute, for the common law remedies Page 113 U. S. 24 of repeated actions for damages and prostration of the dam, a new form of remedy by which anyone whose land is flowed can have assessed, once for all, either in a gross sum or by way of annual damages, adequate compensation for the injury. This view of the principle upon which general mill acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the Supreme Judicial Court of Massachusetts. In delivering the opinion of the court in a case decided in 1832, he said: "The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the provincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil, and in ascertaining their extent, it will be useful to inquire into the principle upon which they are founded. We think they will be found to rest for their justification partly upon the interest which the community at large has in the use and employment of mills and partly upon the nature of the property, which is often so situated that it could not be beneficially used without the aid of this power. A stream of water often runs through the lands of several proprietors. One may have a sufficient mill site on his own land, with ample space on his own land for a mill pond or reservoir, but yet, from the operation of the well known physical law that fluids will seek and find a level, he cannot use his own property without flowing the water back more or less on the lands of some other proprietor. We think the power given by statute was intended to apply to such cases, and that the legislature meant to provide that as the public interest in such case coincides with that of the mill owner, and as the mill owner and the owner of lands to be flowed cannot both enjoy their full rights without some interference, the latter shall yield to the former so far that the former may keep up his mill and head of water, notwithstanding the damage done to the latter, upon payment of an equitable compensation for the real damage sustained, to be ascertained in the mode provided by the statute." "From this view of the object and purpose of the statute, we think it quite manifest Page 113 U. S. 25 that it was designed to provide for the most useful and beneficial occupation and enjoyment of natural streams and watercourses, where the absolute right of each proprietor to use his own land and water privileges at his own pleasure cannot be fully enjoyed, and one must of necessity in some degree yield to the other." Fiske v. Framingham Manufacturing Co., 12 Pick. 68, 70-72. In another case, decided almost twenty years later, he said: "The relative rights of land owners and mill owners are founded on the established rule of the common law that every proprietor through whose territory a current of water flows in its course toward the sea has an equal right to the use of it for all reasonable and beneficial purposes, including the power of such stream for driving mills, subject to a like reasonable and beneficial use by the proprietors above him and below him on the same stream. Consequently no one can deprive another of his equal right and beneficial use by corrupting the stream by wholly diverting it or stopping it from the proprietor below him or raise it artificially, so as to cause it to flow back on the land of the proprietor above. This rule, in this commonwealth, is slightly modified by the mill acts by the well known provision that when a proprietor erects a dam on his own land and the effect is, by the necessary operation of natural laws, that the water sets back upon some land of the proprietor above -- a consequence which he may not propose as a distinct purpose, but cannot prevent -- he shall not thereby be regarded as committing a tort and obliged to prostrate his dam, but may keep up his dam, paying annual or gross damages, the equitable assessment of which is provided for by the acts. It is not a right to take and use the land of the proprietor above against his will, but it is an authority to use his own land and water privilege to his own advantage and for the benefit of the community. It is a provision by law for regulating the rights of proprietors on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole, to promote and secure their common rights in it." Bates v. Weymouth Iron Co., 8 Cush. 548, 552-553. Other opinions of Chief Justice Shaw illustrate the same view. Page 113 U. S. 26 Williams v. Nelson, 23 Pick. 141, 143; French v. Braintree Manufacturing Co., 23 Pick. 216, 218-221; Cary v. Daniels, 8 Met. 466, 476-477; Murdock v. Stickney, 8 Cush. 113, 116; Gould v. Boston Duck Co., 13 Gray 442, 450. It finds more or less distinct expression in other authorities. Lowell v. Boston, 111 Mass. 464-466; United States v. Ames, 1 Woodb. & in. 76, 88; Waddy v. Johnson, 5 Iredell 333, 339; Jones v. Skinner, 61 Me. 25, 28; Olmstead v. Camp, 33 Conn. 547, 550; Chief Justice Redfield, in 12 Am.Law Reg. (N.S.) 498-500. And no case has been cited in which it has been considered and rejected. Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other states maintaining the validity of general mill acts as taking private property for public use, in the strict constitutional meaning of that phrase, the statute under which the Amoskeag Manufacturing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which without some such regulation could not be beneficially used. The statute does not authorize new mills to be erected to the detriment of existing mills and mill privileges. And by providing for an assessment of full compensation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166. Being a constitutional exercise of legislative power and providing a suitable remedy by trial in the regular course of justice to recover compensation for the injury to the land of the plaintiff in error, it has not deprived him of his property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. Walker v. Sauvinet, 92 U. S. 90; Davidson v. New Orleans, 96 U. S. 97; Hurtado v. California, 110 U. S. 516; Hagar v. Reclamation Dist., 111 U. S. 701. Judgment affirmed. MR. JUSTICE BLATCHFORD did not sit in this case or take any part in its decision. [Footnote 1] "AN ACT FOR THE ENCOURAGEMENT OF MANUFACTURES" "SEC. 1. Any person, or any corporation authorized by its charter so to do, may erect and maintain on his or its own land, or upon land of another with his consent, a water mill, and dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same, for its use and of mills below, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed." "SEC. 2. If the land of any person shall be overflowed, drained, or otherwise injured by the use of such dam, and said damage or injury shall not, within thirty days after due notice thereof, be satisfactorily adjusted by the party erecting or maintaining said dam, either party may apply by petition to the supreme judicial court, in the county or counties where such damage or grievance arises, to have the damage that may have been or may be done thereby, assessed; which petition shall set out the title and description of the premises damaged, the right by reason whereof said grievance arises, the location of the dam, and extent of the damages that may be occasioned thereby; and said court, after reasonable notice to all persons interested, shall, unless the parties agree upon the judgment that shall be rendered, refer said petition to a committee of three disinterested persons, to be appointed by said court, to determine in relation to the matters set forth therein." "SEC. 3. The committee shall give such notice to the parties as shall be ordered by said court; shall hear the parties and view the premises; and, if they shall be of opinion that the flowing or draining of said land, to the depth and extent that the same may or can be flowed by said dam, is or may be of public use or benefit to the people of this state, and that the same is necessary for the use of the mill or mills for which said dam was designed, they shall estimate the damages, and make report to the said court at the next term thereof after said view and estimate. Upon the return of the report of said committee, any person interested therein may object to the acceptance of the same for any irregularity or improper conduct of said committee; and said court may set aside said report for any just and reasonable cause, and, if required, shall inquire for itself whether the erection of said dam is of public use or benefit, any finding of the committee upon that point notwithstanding; and, if the court shall be of opinion that the erection of said dam is not of public use or benefit, the petition shall be dismissed. But if the report shall be accepted and established, the court shall render judgment thereon, after adding fifty per cent. to the estimate of damage; which judgment shall be final, and execution shall issue thereon. Before the reference of such petition to the committee, if either party shall so elect, said court shall direct an issue to the jury, to try the facts alleged in the said petition, and assess the damages; and judgment rendered on the verdict of such jury, with fifty percent added, shall be final, and said court may award costs to either party at its discretion." "SEC. 4. No person or corporation shall derive any title from said proceedings, or be discharged from any liability in relation to said premises, until he or it has paid or tendered to the person aggrieved or damaged the amount of such adverse judgment." "SEC. 5. This act shall in no way affect existing suits, nor any mill of other persons lawfully existing on the same stream, nor any mill site or mill privilege of other persons on which a mill dam has been lawfully erected and used, nor the right of any owner of such mill, mill site, or mill privilege, unless the right to maintain on such lastmentioned site or privilege shall have been lost or defeated by abandonment or otherwise; neither shall it affect the right of a town in any highway or bridge which said town may by law be liable to keep in repair: provided, however, that the provisions of this act shall not be applicable to any navigable waters in this state." "SEC. 6. This act shall take effect from and after its passage." Approved July 3, 1868. [Footnote 2] For convenience of reference, the names of the states are arranged in alphabetical order. The territorial acts of Indiana and Illinois not being in the Library of Congress, the citations of those acts are taken from Gould, Waters, § 616, and notes. ALABAMA. Terr.St. 1811, 1812, Toulmin's Dig. 1823, tit. 45; Clay's Dig. 1843, p. 376; Code 1852, §§ 20892115; Rev.Code 1867, §§ 24812508; Code 1876, §§ 35553579. ARKANSAS. Rev.St. 1837, c. 98; Dig. 1846, c. 107; Dig. 1858, c. 114; Gantt's Dig. 1873, c. 95. CONNECTICUT. St. 1864, c. 26; Gen.St. 1866, tit. 1, c. 16; Gen.St. 1875, tit. 19, c. 17, pt. 6. DELAWARE. Prov.St. 1719, 1760, 1773, 1 Laws 170097, p. 535, app. pp. 53, 72; Rev.St. 1852, c. 61; St. 1859, c. 538; Rev.Code 1874, c. 61. FLORIDA. Terr.St. 1827, 1829, Duval's Compilation, pp. 5155; Thompson's Dig. 1847, c. 10; McClellan's Dig. 1881, c. 152. GEORGIA. St. 1869, c. 98. Repealed by Code of 1882, § 3018. ILLINOIS. 2 Terr.Laws 1815, p. 456; St. 1819, p. 265; Rev.Code 1827, p. 297; Rev.St. 1845, c. 71; Rev.St. 1869, c. 71; Rev.St. 1874, c. 92; Rev.St. 1880, c. 92. INDIANA. Terr.St. 1807, p. 194; Rev.Laws 1824, c. 117; Rev.Laws 1831, c. 1; Rev.St. 1838, c. 1; Rev.St. 1842, c. 48, art. 5; Rev.St. 1852, pt. 2, art. 41; Rev.St. 1881, §§ 882 et seq. IOWA. Terr.St. 1839, p. 343, 1843, p. 437; St. 1885, c. 92; Rev.St. 1860, tit. 11, c. 54, art. 4; Code 1873, tit. 10, c. 1; Code 1880, tit. 10, c. 1. KANSAS. St. 1867, c.87; Gen.St. 1868, c. 66; Comp.Laws 1879, c. 66. KENTUCKY. St. February 22, 1797, 1 Litt.St. 606; 2 Litt. & S.Dig. 1822, p. 933; Rev.St. 1852, c. 67; Gen.St. 1883, c. 77. MAINE. St. 1821, c. 45; Rev.St. 1840, c. 126; Rev.St. 1857, c. 92; Rev.St. 1871, c. 92; Rev.St. 1883, c. 92. MARYLAND. Prov.St. 1719, c. 15, Bacon's Laws 1765, and 1 Kilty's Laws. Repealed by St. 1832, c. 56. MASSACHUSETTS. Prov.St. 1714, c. 15, 1 Prov.Laws (State Ed.) 729, and Anc.Chart. 404; St. 1795, c. 74, passed February 27, 1796; 1824, c. 153, February 26, 1825; 1825, c. 109, February 28, 1826; 1829, c. 122, March 12, 1830; Rev.St. 1836, c. 116; Gen.St. 1860, c. 149; Pub.St. 1882, c. 190. MICHIGAN. Terr.St. 1824, 1828, 2 Terr.Laws, 192, 699; St. 1865, c. 304; Comp.Laws 1872, c. 221; St. 1873, c. 196. MINNESOTA. Terr.St. 1857, Pub.St. 184958, c. 129; Rev.St. 1866, c. 31; Gen.St. 1878, c. 31. MISSISSIPPI. Terr.St. 1811, 1812, p. 344; Rev.Code 1824, c. 65; Rev.Code 1871, c. 34; Rev.Code 1880, c. 27. MISSOURI. St. 1823, 2 Rev.St. 1825, p. 587; St. 1835, p. 405; Rev.St. 1845, c. 121; Rev.St. 1855, c. 112; Gen.St. 1865, c. 101; Wagner's St. 1872, c. 98; Rev.St. 1879, c. 132. NEBRASKA. Terr.St. 186162, p. 71; Rev.St. 1866, c. 36; Gen.St. 1873, c. 44; Comp.St. 1881, c. 57. NEW HAMPSHIRE. Prov.St. 1718, Prov.Laws (Ed. 1771), c. 60; St. 1868, c. 20; Gen.Laws 1878, c. 190. NORTH CAROLINA. Prov.St. 1758, c. 5, Rev. 1773, p. 219; St. 1777, c. 23, Laws 1791, p. 343; St. 1809, c. 15; 1813, c. 19; Rev.Laws 1821, c. 122, 773, 863; Rev.St. 1837, c. 74; Rev.Code 1854, c. 71; Battle's Revisal 1873, c. 72. OREGON. St. December 19, 1865, Gen.Laws 184372, p. 679. PENNSYLVANIA. St. March 23, 1803, 4 Smith's Laws, p. 20; Prud.Dig. (10th Ed.) p. 1065. RHODE ISLAND. Col.St. 1734, Laws 1744, p. 180; Public Laws 1798, p. 504; Rev.St. 1857, c. 88; Pub.St. 1882, c. 104. TENNESSEE. Rev.Laws 1809, c. 23; Compilation 1836, p. 486; Code 1858, §§ 19081915; Code 1884, §§ 26512661. VERMONT. St. 1866, c. 12; 1867, c. 27; 1869, c. 27; Gen.St. 1870, app. pp. 906, 953, 1025; Rev.Laws 1880, c. 148, §§ 32153224. VIRGINIA. Col.St. 1667, c. 4, 2 Henn.St. 260; Col. St. 1705, c. 41, 3 Henn. 401; Col.St. 1745, c. 11, 5 Henn. 359; St. 1785, c. 82, 12 Henn. 187; Rev.Code 1814, c. 105; Rev.Code 1819, c. 235; Code 1849, c. 63; Code 1873, c. 63. WEST VIRGINIA. Code 1870, c. 44, §§ 2936. WISCONSIN. Terr.St. 1840, c. 48; Rev.St. 1858, c. 56; Rev.St. 1878, c. 146.
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