The American Law Register, Τόμος 8
and therefore is of public use; which fact is found upon evidence the whole of which was objected to by the respondents."
With regard to the parties being unable to agree as to the damages to be paid, the court found that the petitioners, prior to the bringing of the petition, asked the respondents, William, Joel, and Horace Austin, to state the price for which they would convey to them the right to flow so much of their land as would be covered by water in consequence of raising the water in the pond to the various heights of two, three, and four feet above the point to which it could be raised by the dam then existing at the outlet of the pond; in reply to which they stated certain terms which the petitioners were unwilling and refused to accept; and these respondents made no other proposition. Also that the petitioners applied to the respondent Elliott to state to them the price for which he would convey the right to flow his land, by raising the water in the pond three feet higher than it could be raised by the dam then existing; to which he declined to make any answer. The court thereupon found that the petitioners were unable to agree with the respondents, or either of them, as to the damage, or as to the judgment that should be rendered.
The respondents brought the record before this court by a motion in error.
H. B. Harrison (with whom were Blackman and Elliott), for the plaintiffs in error.-1. The Flowage Act is unconstitutional. It is not within the constitutional power of the General Assembly to authorize, directly or indirectly, one man to take and appropriate to his private use (either with or without compensation) the property of another: Varick v. Smith, 5 Paige 137, 159; Matter of Albany Street, 11 Wend. 148; Wilkinson v. Leland, 2 Peters 627; Hay v. Cohoes Co., 3 Barb. 47; Hartwell v. Armstrong, 19 Id. 166; West River Bridge v. Dir, 6 How. 544; Bradley v. N. York and N. Haven Railroad Co., 21 Conn. 305; Norwich Gas Light Co. v. Norwich City Gas Co., 25 Id. 19, 38; Woodruff v. Neal, 28 Id. 169; Taylor v. Porter, 4 IIill 140; Clack v. White, 2 Swan 540; Sadler v. Langham, 34 Ala. 311; Harding v. Goodlett, 3 Yerger 41; Commonwealth v. Sawin, 2 Pick. 548, 549; Commonwealth v. Cambridge, 7 Mass. 158, 167; Constitution of Conn., Art. 1, SS 8, 9, 11, 12, 21. The reasoning by which courts in certain states have sustained the mill acts of those
states does not apply in support of this law. The mill acts of Massachusetts, for instance, rest upon peculiarities of the common law of that state in relation to the rights of proprietors of land traversed by mill-streams-peculiarities directly in conflict with the common law of England and of Connecticut: Murdock v. Stickney, 8 Cush. 116; Bates v. Weymouth Iron Co., Id. 548; Jordan v. Woodward, 40 Maine 322; Williams v. School District, 33 Vt. 278; Newcomb v. Smith, 1 Chandler 71; Ingraham v. Hutchinson, 2 Conn. 590; King v. Tiffany, 9 Id. 168; Buddington v. Bradley, 10 Id. 218; Parker v. Griswold, 17 Id. 288; Thurber v. Martin, 2 Gray 394; Thompson v. Crocker, 9 Pick. 59; Angell on Watercourses, $ 340.
2. At any rate, the act, if constitutional, "steps to the verge of the constitutional limit," and must be construed with the utmost rigor against those who try to seize property under it, and in favor of those whose property they try to seize. No proceeding under it should be sustained unless it is brought within both the letter and the spirit of the act: Nichols v. Bridgeport, 23 Conn. 208; Jordan v. Woodward, 40 Maine 322; Williams v. School District, 23 Vt. 278. This case does not come within either the letter or the spirit of the act. The act provides only for those cases where the mill and the dam are on the " same" piece of land and under the control of the same person. It does not authorize, or intend to authorize, any petitioner to flood the land of a respondent, except in a case where the petitioner possesses the right of turning to some use the privilege seized by him under the act. If the mill is separated from the dam by land not owned or controlled by the petitioner, then the petitioner, after raising his dam to the injury of the respondent, will not be able to apply to his mill the water thus obtained. The words "on the same," in section 388, were accordingly introduced for the express purpose of preventing the act from applying to cases like this: Farrington v. Blish, 14 Maine 423; Murdock v. Stickney, 8 Cush. 117; Bates v. Weymouth Iron Co., Id. 552.
3. It is not properly found, within the true intent of the requirement of section 388, that the petitioners could not "agree" with the respondents "as to the damages to be paid."
4. The record does not "show with certainty the matter" that has been "determined," within the true intent and meaning of the same section.
Watrous and Rogers, for the defendants in error.
McCurdy, J.—The principal point raised in this case—the constitutional question-was decided, after full consideration, in the case of Olmstead v. Camp, 33 Conn. R. 532. But as the
question was one of great interest, and it was suggested that new views might be presented bearing especially on the particular facts of this case, a very elaborate argument was again listened to by the court.
It was claimed that in Massachusetts, where the flowage laws were said to have originated, and where they have been more frequently discussed and sustained than in any other state, principles in relation to the rights of mill-owners and riparian proprietors have been recognised as a part of their common law somewhat different from those which exist in this state and elsewhere.
However this may be, we do not understand that in that state, or in any other of the many which have enacted and upheld such laws, their defence has been placed upon any peculiarity of their common law. They are everywhere justified upon the broad ground of a paramount right of the government to take private property, upon making compensation, in cases of necessity or great public utility. It is this general authority, which, in the opinion given in the case referred to, we have endeavoured to explain and sustain by considerations which seemed to be appropriate. We see no occasion to change the views then expressed.
But it is urged that the statute provides only for a dam to be raised on the land of the mill-owner or that of another by his consent, and if it is erected on the land of the mill-owner, it must be on the identical tract on which the mill stands; and it appears in this case that the dam stands on a lot of the petitioners separate from the mill-site; the land of another person lying between the two tracts. We are unable to see any force in this objection. The object of the clause relied on is to require that the dam shall be built on a site where the owner has a right to place it. This right may result from his own ownership or from an agreement with the proprietor. The words "on the same" refer to the antecedents, "his own land" or " land of another." There is no conceivable reason for requiring the mill and the dam to be on precisely the same tract.
The respondents further object that it does not sufficiently appear that the parties were not able to agree in relation to the damages. This is a question of fact, and the Superior Court has found that they were unable to agree. If it were proper to reexamine the question, we should conclude that the evidence abundantly justified the finding. The petitioners called on the respondents to state their terms for the privilege of flowing. One party made no answer, and the other named so large a sum that the proposition was rejected.
Another objection to the report of the committee is, that they do not establish with sufficient certainty the height to which the dam may be raised. It would unquestionably have seemed more definite if they had established the height by marks upon a rock, or pillar, or some other permanent object. But we have a right to presume that the height to which the petitioners were entitled was well known and established by some such mark, and the committee, taking that for their basis, allow a certain number of additional feet.
We see no error in the proceedings, and the decree is affirmed.
In this opinion PARK, J., concurred.
BUTLER, J.-I was fully satisfied at the conclusion of the argument in Olmstead v. Camp, 33 Conn. 532, that the flowage law was sustainable upon strict and recognised principles of constitutional law; and a re-examination of the question has confirmed, rather than shaken, that opinion.
Like every other question of constitutional power exercised by the legislature under our state constitution, it presents itself to the mind in a three-fold aspect, and logically involves a three-fold inquiry.
First.—Whether the power exercised is delegated by the people to the legislature in and by the constitution specifically, or by a general grant of power sufficiently comprehensive to embrace it.
Second.— Whether the exercise of the power as exercised conflicts with the Constitution and laws of the United States, or with any other provision of the constitution of this state. And,
Third. Whether the exercise of the power in the particular case and manner is contrary to natural justice. For, as it is to be conclusively presumed that the people, while possessing the power,
would not have exercised it contrary to that fundamental principle of the social compact, it is in like manner to be presumed that they did not intend to delegate and have not delegated the power so to exercise it to the legislature. An unjust use of the power is therefore an abuse of it and void.
We come then to the application of these inquiries to the case in hand. And first,—What is the power which has been exercised, and is it delegated in the Constitution ?
The power exercised is the right of eminent domain, which is a part of the legislative power, and is unquestionably delegated in the 1st clause of the 3d article of the Constitution. This right is a paramount right attached to every man's land, and he holds it subject to its exercise. Bouvier defines it to be the right which the people or government retain over the estates of individuals to resume the same for public use; and that definition is sufficiently comprehensive and in accordance with the authorities.
2. The law in question does not conflict with the Constitution or laws of the United States, or any provision of the constitution of this state. There is a clause in the bill of rights requiring just compensation to be made when the power is exercised, and as a condition of its exercise. Much misconception has prevailed in relation to the nature of that clause, but it is simply a condition attached to the exercise of the right of eminent domain. It does not purport to be a grant of power, but recognises its existence. Its import is precisely what it would be if the language used had been, "the right of eminent domain shall not be exercised unless just compensation be made for the property taken." The convention which framed the Constitution of 1818 was composed of very able men, many of them distinguished jurists. They framed a constitution remarkably concise, clear, and unambiguous. Whatever they intended to say they said, and in simple language, so that it could be understood by the people. They knew, when they provided that the whole legislative power should vest in the legislature, that the right of eminent domain would vest as a part of it, and they did not except it. They therefore intended it should vest. So when they framed the condition to be attached to its exercise, they did not use the words " eminent domain," for those words would not have been intelligible to the people, but they did use the precise language employed by jurists to define and describe that right. It is evident therefore that they intended to attach