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HEAD v. AMOSKEAG MANUFACTURING COMPANY.

SUPREME COURT OF THE UNITED STATES, 1885.

(113 U. S. 9.] 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, woollen, 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, ch. 20, which is copied in the margin. [It is omitted here; the substance of it sufficiently appears in wbat follows.]

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 dain 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 clam, and the flowing, if any, of Head's land to the depth and extent that it inight or could be flowed thereby, were or might be

L 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 hy 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 per

son of property without due process of law, nor deny to any person withiu its jurisdiction the equal protection of the laws; as well as in violation of the Constitution of the State, the Bill of Rights of 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 payınent or tender of the damages assessed by the verdict, with interest, and fifty per cent 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 inight or could be flowed or injured thereby. 56 N. H. 386 ; 59 N. H. 332, 563.

Mr. C. R. Morrison, for plaintiff in error.
Mr. George F. Hoar and Mr. B. Wadleigh, for defendant in error.

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, 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, ch. 20.

The plaintiff in error contends that his property has been taken by the State of New Hampshire for private vise, 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 re-enacted after they became States. They were also enacted 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. [The note refers to the statutes of twenty-nine States. It is omitted here.]

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 Georgia, 500 ; Tyler v. Beacher (1871), 44 Vermont, 648; Ryerson v. Brown (1877), 35 Michigan, 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 Yerger, 40; Memphis Railroad v. Memphis, 4 Coldwell, 406; Moore v. Wright, 34 Alabama, 311, 333; Bottoms v. Brewer, 54 Alabama, 288; Huy v. Cohoes Co., 3 Barb. 42, 47, and 2 N. Y. 159.

The principal objects, no doubt, of the earlier Acts were grist mills ; and it has been generally admitted, even by those courts 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, ch. 153; Wolcott Woollen Munufacturing 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

Scudder v. Trenton Delaware Falls Co., Saxton, 694, 728, 729 ; Boston & Roxbury Mill Corporation v. Neroman, 12 Pick. 467;

use.

Hazen v. Essex Co., 12 Cush. 475; Commonwealth v. Essex Co., 13 Gray, 239, 251, 252; Hunkins 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 ou 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, 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 Maine, 317; Olmstead v. Camp, 33 Conn. 532 ; Todd v. Austin, 34 Conn. 78; Venard v. Cross, 8 Kansas, 248; Hurding v. Funk, 8 Kansas, 315; Miller v. Troost, 14 Minnesota, 282; Newcomb v. Smith, 1 Chandler, 71; Fisher v. Horicon Co., 10 Wisconsin, 351; Babb v. Mackey, 10 Wisconsin, 314; 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 1781, 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 Portland v. Morse, 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

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manufacturing purposes under a general mill Act, of which any owner of land upon a stream not navigable may avail himself 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 con. stitutionality 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; De Witt v. Harvey, 4 Gray, 486; McGillivray v. Evans, 27 California, 92.

At the common law, as Lord Coke tells us, “ If two tenants in com. mon, 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 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. Lit. 200 b; 4 Kent Com. 370. In the same spirit, the statutes of Massachusetts, for a hundred and seventy-five 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 any one 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, ch.

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