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she hereby is, divorced from her said husband, the said John L. Lewis; and is hereby released and absolved from all obligations, by virtue of said marriage."

The case was reserved for the advice of this court, upon the question, whether the plaintiff was entitled to a recovery; and if so, to what period the rents and profits should be computed, in the assessment of damages.

Sherman and Barnes, for the plaintiff.
N. Smith and Storrs, for the defendant.

DAGGETT, J. ... It is said, however, that if a State legislature were authorized to make a law giving power to some tribunal to grant divorces, still they cannot, by a sovereign Act, dissolve this contract. This, I apprehend, applies only to the fitness of the exercise of the power in question, and not to the constitutional right. It will be exceedingly difficult to establish that Act to be a violation of the Constitution of the United States, when done by the legislature itself, which would not be so, if done by a court, in obedience to law. In the case of Culder & ux. v. Bull & ux., Dall. 386, the Supreme Court of the United States decided, that a resolution or law of the Legislature of Connecticut establishing a will, was not a violation of the Constitution of the United States.

A further objection is urged against this Act, viz., that by the new Constitution of 1818, there is an entire separation of the legislative and judicial departments, and that the legislature can now pass no Act or resolution, not clearly warranted by that Constitution ; that the Constitution is a grant of power, and not a limitation of powers already possessed ; and in short, that there is no reserved power in the legislature since the adoption of this Constitution. Precisely the opposite of this is true. From the settlement of the State there have been certain fundamental rules, by which power has been exercised. These rules were embodied in an instrument, called, by some, a constitution, -- by others, a charter. All agree, that it was the first Constitution ever made in Connecticut, and made too, by the people themselves. It gave very extensive powers to the legislature, and left too much (for it left everything almost) to their will. The Constitution of 1818 professed to, and, in fact, did, liinit that will. It adopted certain general principles, by a preamble, called a declarution of rights ; provided for the election and appointment of certain organs of the government, such as the legislative, executive, and judicial departments; and inposed upon them certain restraints. It found the State sovereign anıl inde. pendent, with a legislative power capable of making all laws necessary for the good of the people, not forbidden by the Constitution of the United States, nor opposed to the sound maxims of legislation ; and it

1 There appears to be a confusing double reference here, — to the “Fundamental Orders ” of 1638–1639 (1 Poore's Charters, 249), and to the Charter of Charles II. (16. 252). — Ev.

left them in the same condition, except so far as limitations were provided."

There is now, and has been, a law in force, on the subject of divorces. This law was passed one hundred and thirty years ago. It provides for divorces a vinculo mutrimonii, in four cases, viz., adultery, fraudulent contract, willul desertion, and seven years' absence, unheard of. The law has remained in substance the sanje as it was, when enacted, in 1667. During all this period, the legislature bas interfered, like the Parliament of Great Britain, and passed special Acts of divorce a vinculo matrimonii ; and, at almost every session since the Constitution of the United States went into operation, now forty-two years, and for the thirteen years of the existence of the Constitution of Connecticut, such Acts have been, in multiplied cases, passed, and sanctioned, by the constituted authorities of our State.

We are not at liberty to inquire into the wisdom of our existing law on this subject; por into the expediency of such frequent interference by the legislature. We can only inquire into the constitutionality of the Act under consideration. The power is not prohibited, either by the Constitution of the United States, or by that of this State. In view of the appalling consequences of declaring the general law of the State, or the repeated Acts of our Legislature, unconstitutional and void, consequences easily conceived, but not easily expressed, - such as bastardizing the issue and subjecting the parties to punishment for adultery, the court should come to the result only on a solemn conviction that their oaths of office and these Constitutions imperiously demand it. Feeling myself no such conviction, I cannot pronounce the Act void.

Another question was reserved, that is, shall damages be recovered to the date of the writ, or to the rendition of the judgment? It is understood, that different rules have prevailed on this point. I think it most consonant to principle, that damages should be given only to the date of the writ.

I would therefore advise the Superior Court, that judgment be entered up for the plaintiff, with damages to the date of the writ.

HOSMER, CH. J., and Bissell, J., were of the same opinion.

PETERS, J., said he could not give an unqualified concurrence. Upon general principles, he had no doubt, that the Act of Divorce in this case, was repugnant to the Constitution of the United States, as impairing the obligation of a contract; and that it was void, under the Constitution of this State, as an assumption of judicial power by the legislature. But in view of the decisions in analogous cases and of the appalling consequences of nullifying all legislative Acts of Divorce, he should acquiesce in the opinion of the court. On the point of damages he concurred without hesitation.

1 See Pratt v. Allen, 13 Conn. 124, where Williams, J., quotes and sanctions these doctrines; and see Trustees of Bishops' Fund v. Rider, 13 Conn. 87, for the general subject of laws impairing contracts.

WILLIAMS, J., having been retained as counsel for Lewis, on the plaintiff's application for the Act of Divorce, declined giving any opinion as to the validity of that Act. He concurred as to the damages.

Judgment to be given for the plaintiff.



[139 Mass. 29.] MORTON, C. J. This is an action to recover one balf the cost of a party wall. In 1873, the plaintiff made an agreement with one Matthews, who was then the owner of the equity of redemption of the defendant's land, that the plaintiff might place one half of the division wall of his house on the defendant's lot; and that Matthews would pay one half of the cost of the wall when he made use of it.

The defendant's title is under the foreclosure of a mortgage existing at the time this agreeinent was made. The mortgagee was not a party to the agreement, and it is not contended that the defendant is bound by it. But the plaintiff contends that the defendant is liable by virtue of the Prov. St. of 1692-93 (5 W. & M.) c. 13, entitled, “ An Act for building with stone or brick in the town of Boston, and preventing fire.” 1 Prov. Laws (State ed.) 42. This statute provided, in § 2, that “ every person building as aforesaid with brick or stone shall have liberty to set half his partition wall in his neighbor's ground, so that he leave toothing in the corners of such walls for his neighbor to adjoin unto, who, when he shall build, such neighbor adjoining shall pay for one half of the said partition wall, so far as it shall be built against. And in case of any difference arising, the selecimen shall have power to appoint meet persons to value the same or lay out the line between such neighbors.”

We are of opinion that this provision of the Provincial Statutes was never in force in the Commonwealth of Massachusetts. The Constitution continued in force all laws adopted, used, and approved in the Province, Colony, or State of Massachusetts Bay, and usually practised on in the courts of law, until altered or repealed by the legislature, “ such parts only excepted as are repugnant to the rights and liberties contained in this Constitution.” Const. Mass. c. 6, art. 6.

The provision in question undertakes to deal with private property, and to authorize one man to appropriate and use the property of another without his consent. It assumes to take private property with

1 See 1 Bish. Mar. & Div. (6th ed.) ss. 685, 686 ; Cooley, Const. Lim. (6th ed.) 128133. The topic here considered is covered in several States by express constitutional provisions. — Ed.

out due process of law, and without compensation. It is repugnant to the fundamental principles declared in the Declaration of Rights, that the property of the subject shall not be appropriated, even for public use, without paying him a reasonable compensation therefor, and that he shall not be deprived of his property but by the judgment of his peers, or the law of the land; and that, in all controversies concerning property, he shall have a right to trial by jury. Declaration of Rights, arts. 10. 12, 15. Morse v. Stocker, 1 Allen, 150. Forster v. Forster, 129 Mass. 559.

Undoubtedly, the authority of the legislature, in the exercise of the police power, is very broad. This power is founded upon the principle that any man may be reasonably restrained in the use of his property so as not to injure others. Watertoun v. Mayo, 109 Mass. 315, 318. But it does not justify authorizing one nan to appropriate and use the property of another without his consent and without adequate compensation.

It is a significant fact, that, since the adoption of the Constitution, no trace can be found of any legislative or judicial sanction of the provisions of the Provincial statute upon which the plaintiff relies. We think it has been regarded as repugnant to the principles of the Constitution, and as of no force. It follows that the plaintiff cannot maintain this action.

Exceptions overruled. J. D. Thomson, for the plaintiff, cited Quinn v. Morse, 130 Mass. 317, 321.

R. D. Smith and G. W. Estabrook, for the defendant.



[154 Mass. 579.] Bill in equity, filed in the Superior Court on September 5, 1889, to prevent the defendant from maintaining a dam across a creek flowing into Cataumet Harbor in Falmouth, in the county of Barnstable, and from flowing the plaintiffs' land. Hearing before Mason, J., who ordered the bill to be dismissed, and, after an appeal had been taken by the plaintiffs to this court, made the following report of the facts.

The plaintiffs were the owners of about three fourths of an acre of marsh land adjoining the creek above referred to; and the defendant had built the dam across the creek in question, under the provision of the St. of 1889, c. 383,1 and by the license of the Board of Harbor and

1 This statute, entitled “ An Act to authorize the Flowage of Land for the Purposes of Fish Culture," was approved on May 28, 1889, and is as follows: “Any owner or lessee of lands or flats situated in the county of Barnstable, appropriated or which he desires to appropriate to the culture of useful fishes, may erect and maintain a dam

Land Commissioners, so as to flow about sixty acres of bis own land and that of the plaintiffs, so that they were deprived of the use of it. The dam was partially constructed, and the plaintiffs' land appreciably flowed, but no substantial damage was done before the passage of that statute.

This dam was erected and is maintained for the purpose of creating and raising a pond for the culture of useful fishes, and the pond raised by the dam is well stocked with trout. The immediate purpose or intention of the defendant and those interested with him was not to perform a public service, but to engage in the culture of useful fishes for their own personal pleasure and profit, and the pleasure and profit of particular persons to whom they should sell rights to fish in the pond. It was not their purpose to supply the market with such fishes, nor to supply them to the public by any means, direct or indirect. The land of the plaintiff's had small market value for any use to which it could be applied other than that for which it is now used by means of the defendant's dam. There was at the time of the passage of the Act, and is now, much land in Barnstable County similarly situated, having small market value for any purpose to which it can be applied by its separate owners, which would be enhanced in value if it were shown by successful experiment that such land could be profitably used for the cultivation of useful fishes under the powers conferred by the Act.

The case was argued at the bar in March, 1891, and afterwards, in September, was submitted on the briefs to all the judges.

A. 11. Goodspeed, for the plaintiffs.
J. M. Hall, for the defendant.

MORTON, J. The plaintiffs do not rely upon the fact that the dam was partially constructed by the defendant before the passage of the St. of 1889, c. 383. The plaintiffs could not avail themselves of that fact in this suit. If the dam is maintainable under that statute, the plaintiffs would not be entitled to its abatement although it was partly erected without right. Ware v. Regent's Canal Co., 3 DeG. & J. 212. And if they are entitled to damages for the technical violation of their rights, their remedy is at law. Washburn v. Miller, 117 Mass. 376. Nor do they rely upon the point suggested by the defendant, that the operation of the Act is confined, as it clearly may be, to Barnstable County. Cooley, Const. Lin. 390.

The plaintiffs contend that the St. of 1889, c. 383, under which the court found that the dam was completed and is maintained by the defendant, is inconstitutional, becanse, first, it purports to authorize the

across any stream for the purpose of creating or raising a pond for such fish culture, upon the terms and conditions and suhject to the regulations contained in chapter one hundred and ninety of the Public Statutes, so far as the same are properly applicable in such cases. providel however, that nothing herein contained shall authorize the erection or maintenance of a dam across any navigable stream within said county without a license obtained therefor from the Board of Harbor and Land Commissioners, in accordance with and subject to the provisions of chapter nineteen of the Public Statutes."

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