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nity would depend for milling facilities upon the caprice or avarice of one or more men. It is true that at present a mill site on the river bank is not so essential to industrial activity, but it is still important on the ground of economy, water power being cheaper than steam. In most of the States, in which the question has arisen, such appropriations of land have been sustained as being for the public good, if not for a public use. But in New York and other States the power of exercising the right of eminent domain in favor of manufacturing and milling industries is denied.
In pronouncing the opinion of the Supreme Court of Massachusetts in favor of such an exercise of the right of eminent domain, Shaw, Ch. J., said: “It is then contended that if this act was intended to authorize the defendant company to take the mill power and mill of the plaintiff, it was void because it was not taken for public use, and it was not within the power of the government in the exercise of the right of eminent domain. This is the main question. In determining it we must look to the declared purposes of the act; and if a public use is declared, it will be so held, unless it manifestly appears by the provisions of the act that they can have no tendency to advance and promote such public use.
The declared purposes are to improve the navigation of the Merrimac River and to create a large mill power for mechanical and manufacturing purposes.
| Fisher o. Manufacturing Co., 12 Pick.67; Boston & Roxbury Mill Co.o. Newman, 12 Pick. 467; Olmstead v. Camp, 33 Conn. 532; Great Falls Manuf. Co. v. Fernald, 47 N. H. 444; Ash v. Cummings, 50 N. H. 591; Jordan o. Woodward, 40 Me. 317; Crenshaw v. State River Co., 6 Rand. 245; Burgess v. Clark, 13 Ired. 109; Smith v. Connelly, 1 T. B. Mon. 58; Shackleford v. Coffey, J.J. Marsh. 40; Newcome v. Smith, 1 Chand. 71 ; Thien o. Voe, gtlander, 3 Wis. 461; Pratt v. Brown, 8 Wis. 603; (but see Fisher v. Horricon Co., 10 Wis. 351; Curtis v. Whipple, 24 Wis 350;) Miller 0. Troosh, 14 Minn. 365; Venard v. Cross, 8 Kan. 248; Harding o. Funk, 8 Kan. 315.
2 Hay v. Cohoes Company, 3 Barb. 47; Ryerson v. Brown, 35 Mich. 333 (24 Am. Rep. 564); Loughbridge v. Harris, 42 Ga. 500; Tyler v. Beacher, 44 Vt. 648 (8 Am. Rep. 398); Saddler v. Laugham, 34 Ala. 311. In the last two cases, the right to condemn lands for mill sites was recognized, provided the mill owners were required to serve the public impartially.
That the improvement of the navigation of a river is done for the public use, has been too frequently decided and acted upon to require authorities, and so to create a wholly artificial navigation by canals. The establishment of a great mill power for manufacturing purposes, as an object of great interest, especially since manufacturing has come to be one of the great public industrials pursuits of the commonwealth, seems to have been regarded by the legislature and sanctioned by the jurisprudence of the commonwealth, and in our judgment rightly so, in determining what is a public use, justifying the exercise of eminent domain.
That the erection of this dam would have a strong and direct tendency to advance both these public objects, there is no doubt." On the same
I general grounds, in the exercise of the right of eminent domain, lands have been appropriated for use as a cemetery.? A careful reading of the authorities forces one to the conclusion that the term publiquse is either misused or is given a peculiar meaning in the law of eminent domain, very different from what it generally bears in other branches of the law, and this thought is most strongly forced upon us in learning from the cases that the establishment of a private mill is such a public use as will justify the exercise of the right of eminent domain in its favor.3
1 Hazen v. Essex Company, 12 Cush. 475.
9 Edgecombe v. Burlington, 46 Vt. 118; Balch o. Commissioners, 103 Mass. 106; Evergreen Cemetery o. New Haven, 43 Conn. 234; Matter of Deansville Cemetery, 66 N. Y. 569. But in the last the power to condemn lands for cemetery purposes was denied to a strictly private corporation.
3 “Reasoning by analogy from one of the sovereign powers of government to another is exceedingly liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general sense and for other purposes it would be idle or misleading to apply the same term. All governmental powers exist for public purposes, but they are not necessarily to be exercised under the same conditions of public interest. The sovereign police powerwhich the State exercises is to be exercised only for the general public welfare, but it reaches to every person, to every kind of business, to every species of property within the commonwealth. The conduct of every individual, and the use of all property and of all rights is regulated by it, to any extent found necessary for the preservation of the public order, and also for the protection of the private rights of one individual against encroachments by others. The sovereign power of taxation is employed in a great many cases where the power of eminent domain might be made more immediately efficient and available, if constitutional principles could suffer it to be resorted to; but each of these has its own peculiar and appropriate sphere, and the object which is public for the demands of the one is not necessarily of a character to permit the exercise of the other. (That Eminent Domain and Taxation are but special phases of police power, and not distinct and separate powers of government, see ante, $ 1.)
Indeed, it would appear more correct to say, that while the term public use was originally employed in the law of eminent domain as meaning a use by some governmental agency, the ever increasing complications of modern civivilization ha ve compelled an application of the right of eminent d omain to other than public or governmental uses, and the meaning of the term public use was broadened from time to time in order to cover these new applications of the right, until now the term is synonymous with public good, and justifies the following language of Chancellor Walworth. In defining what is a public use," he said: “If the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine, whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose. It is upon this principle that the legislatures of several of the States have authorized the condemnation of lands for mill sites, where from the nature of the country such mill sites could not be obtained for the accommodation of the inhabitants, without overflowing the lands thus condemned. Upon the same principle of public benefit, not only the agents of the government, but also individuais and corporate bodies, have been authorized to take private
“If we examine the subject critically we shall find that the most important consideration in the case of eminent domain is the necessity of accomplishing some public good which is otherwise impracticable; and we shall also find that the law does not so much regard the means as the need. The power is much nearer akin to that of the public police than to that of taxation; it goes but a step further, and that is in the same direction. Every man has an abstract right to the exclusive use of his own property for his own enjoyment in such manner as he shall choose; but if he should choose to create a nuisance upon it, or to do anything which would preclude a reasonable enjoyment of adjacent property, the law would interfere to impose restraints. He is said to own his private lot to the center of the earth, but he would not be allowed to excavate it indefinitely, lest bis neighbor's lot should disappear in the excavation. The abstract right to make use of his own property in his own way is compelled to yield to the general comfort and protection of the community, and to a proper regard to relative rights in others. The situation of his property may even be such that he is compelled to dispose of it because the law will not suffer his regular business to be carried on upon it. A needful and lawful species of manufacture may so injuriously affect the health and comfort of the vicinity that it cannot be tolerated in a densely settled neighborhood, and therefore the owner of a lot in that neighborhood will not be allowed to engage in that manufacture upon it, even though it be his regular and legitimate business.
Eminent domain only recognizes and enforces the superior right of the community against the selfishness of individuals in a similar way. Every branch of needful industry has a right to exist, and the community has a right to demand that it be permitted to exist, and if for that purpose a peculiar locality already in possession of an individual is essential, the owner's right to undisturbed occupancy must yield to the superior interest of the public. A railroad cannot go around the farm of every unwill. ing person, and the business of transporting persons and property for long distances by rail, which has been found so essential to the general enjoyment and welfare, could never have existed if it were in the power of any unwilling person to stop the road at his boundary, or to demand unreasonable terms as a condition of passing him. The law interferes in these cases, and regulates the relative rights of the owner and of the community with as strict regard to justice and equity as the circumstances will permit. It does not deprive the owner of his property, but it compels him to dispose of so much of it as is essential on equitable terms. While, therefore, eminent domain establishes no industry, it so regulates the relative rights of all that no individual shall have it in his power to preclude its establishment.” People v. Township Board of Salem, 20 Mich. 452.
1 Beekman v. Schenectady and Saratoga R. R. Co., 3 Paige, 45, 73 (22 Am Dec. 679).
property for the purpose of making public highways,
rnpike roads and canals; of erecting and constructing wharves and basins ; of establishing ferries; of draining swamps and marshes, and of bringing water to cities and villages. In all such cases the object of the legislative grant of power is the public benefit derived from the contemplated improvement which is to be effected directly by the agents of the government, or through the medium of corporate bodies, or of individual enterprise.” In commenting upon this language of Chancellor Walworth, Judge Cooley says:1 “It would not be entirely safe, however, to apply with much liberality the language above quoted, that, where the public interest can be in any way promoted by the taking of private property,' the taking can be considered for a public use. It is certain that there are very many cases in which the property of some individual owners would be likely to be better employed or occupied to the advancement of the public interest in other hands than in their own; but it does not follow from this circumstance alone, that they may rightfully be dispossessed. It may be for the public benefit that all the wild lands of the State be improved and cultivated, all the low lands drained, all the unsightly places beautified, all dilapidated buildings replaced by new; because all these things tend to give an aspect of beauty, thrift, and comfort to the country and thereby to invite settlement, increase the value of lands, and gratify the public taste; but the common law has never sanctioned an appropriation of property based upon these considerations alone; and some further element must therefore be involved before the appropriation can be regarded as sanctioned by our constitutions.” It is true that the common law has never sanctioned the condemnation of private property for all the purposes enumerated by Judge Cooley ; and it is likewise true, that in condemning lands for
1 Cooley Const. Lim. 660.