[* 534] *Whether the power of eminent domain can rightfully be exercised in the condemnation of lands for manufacturing purposes, where the manufactories are to be owned and occupied by individuals, is a question upon which the authorities are at variance. Saw-mills, grist-mills, and various other manufactories are certainly a public necessity; and while the country is new, and capital not easily attainable for their erection, it sometimes seems to be essential that government should offer large inducements to parties who will supply this necessity. Before steam came into use, water was almost the sole reliance for motive power; and as reservoirs were generally necessary for this purpose, it would sometimes happen that the owner of a valuable mill site was unable to render it available, because the owners of lands which must be flowed to obtain a reservoir would neither consent to the construction of a dam, nor sell their lands except at extravagant and inadmissible prices. The legislatures in some of the States have taken the matter in hand, and have surmounted the difficulty, sometimes by authorizing the land to be appropriated, and at other times by permitting the erection of the dam, but requiring the mill owner to pay annually to the proprietor of the land the damages caused by the flowing, to be assessed in some impartial mode.1 The reasons for such statutes have been growing weaker with the introduction of steam power and the progress of improvement, but their validity has repeatedly been recognized in some of the States, and probably the same courts would continue still to recognize it, notwithstanding the large cities, is as much a matter of v. Boston, 100 Mass. 544. A private corporation may be empowered to exercise the right of eminent domain to obtain a way along which to lay pipe for the transportation of oil to a railroad or navigable water. West Va. Transportation Co. v. Volcanic Oil and Coal Co., 5 W. Va. 382. It is held in Evergreen Cemetery v. New Haven, 43 Conn. 234, that lands may be appropriated under this power for a cemetery; but in Matter of Deansville Cemetery Association, 66 N. Y. 569, this is denied. 1 See Angell on Watercourses, c. 12, for references to the statutes on this subject. public necessity may no longer appear to demand such laws.1 The rights granted by these laws to mill owners are said by Chief Justice Shaw, of Massachusetts, to be "granted for the better use of the water power, upon considerations of general policy and the general good; "2 and in this view, and in order to render available a valuable property which might otherwise be made of little use by narrow, selfish, and * un- [* 535] friendly conduct on the part of individuals, such laws may perhaps be sustained on the same grounds which support an exercise of the right of eminent domain to protect, drain, and render valuable the lands which, by the overflow of a river, might otherwise be an extensive and worthless swamp.3 1 "The encouragement of mills has always been a favorite object with the legislature; and though the reasons for it may have ceased, the favor of the legislature continues." Wolcott Woollen Manufacturing Co. v. Upham, 5 Pick. 294. The practice in Michigan has been different. See Ryerson v. Brown, 35 Mich. 333. 2 French v. Braintree Manufacturing Co., 23 Pick. 220. 8 Action on the case for raising a dam across the Merrimac River, by which a mill stream emptying into that river, above the site of said dam, was set back and overflowed, and a mill of the plaintiff situated thereon, and the mill privilege, were damaged and destroyed. Demurrer to the declaration. The defendant company were chartered for the purpose of constructing a dam across the Merrimac River, and constructing one or more locks and canals, in connection with said dam, to remove obstructions in said river by falls and rapids, and to create a water power to be used for mechanical and manufacturing purposes. The defendants claimed that they were justified in what they had done, by an act of the legislature exercising the sovereign power of the State, in the right of eminent domain; that the plaintiff's property in the mill and mill privilege was taken and ap propriated under this right; and that his remedy was by a claim of damages under the act, and not by action at common law as for a wrongful and unwarrantable encroachment upon his right of property. Shaw, Ch. J.: "It is 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. In general, whether a particular structure, as a bridge, or a lock, or canal, or road, is for the public use, is a question for the legislature, and which may be presumed to have been correctly decided by them. Commonwealth v. Breed, 4 Pick. 463. That the improvement of the navigation of a river is done for the public use has [* 536] * On the other hand, it is said that the legislature of New York has never exercised the right of eminent domain in favor of mills of any kind, and that "sites for steamengines, hotels, churches, and other public conveniences, might as well be taken by the exercise of this extraordinary power." 1 Similar views have been taken by the Supreme Courts of Alabama and Michigan.2 It is quite possible that, in any State in 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 public interest, especially since manufacturing has come to be one of the great industrial 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 right of eminent domain. See St. 1825, c. 148, incorporating the Salem Mill Dam Corporation; Boston and Roxbury Mill Dam Corporation v. Newman, 12 Pick. 467. The act since passed, and the cases since decided on this ground, are very numerous. That the erection of this dam would have a strong and direct tendency to advance both these public objects, there is no doubt. We are, therefore, of opinion that the powers conferred on the corporation by this act were so done within the scope of the authority of the legislature, and were not a violation of the Constitution of the Commonwealth." Hazen v. Essex Company, 12 Cush. 477. See also Boston and Roxbury Mill Corporation v. Newman, 12 Pick. 467; Fiske v. Framingham Manufacturing Co., 12 Pick. 67; Harding v. Goodlett, 3 Yerg. 41. The courts of Wisconsin have sustained such laws. Newcome v. Smith, 1 Chand. 71; Thien v. Voegtlander, 3 Wis. 461; Pratt v. Brown, 3 Wis. 603. But with some hesitation of late. See Fisher v. Horricon Co., 10 Wis. 351; Curtis v. Whipple, 24 Wis. 350. And see the note of Judge Redfield to Allen v. Inhabitants of Jay, Law Reg., Aug. 1873, p. 493. And those of Connecticut. Olmstead v. Camp, 33 Conn. 532. And of Maine. Jordan r. Woodward, 40 Me. 317. And of Minnesota. Miller v. Troost, 14 Minn. 365. And of Kansas. Venard v. Cross, 8 Kan. 248; Harding v. Funk, 8 Kan. 315. And of Indiana. Hawkins v. Lawrence, 8 Blackf. 266. And they have been enforced elsewhere without question. Burgess v. Clark, 13 Ired. 109; McAfee's Heirs v. Kennedy, 1 Lit. 92; Smith v. Connelly, 1 T. B. Monr. 58; Shackleford v. Coffey, 4 J. J. Marsh. 40; Crenshaw v. Slate River Co., 6 Rand. 245. The whole subject was very fully considered and the validity of such legislation affirmed in Great Falls Manuf. Co. v. Fernald, 47 N. H. 444. And see Ash v. Cummings, 50 N. H. 591. In Loughbridge v. Harris, 42 Geo. 500, an act for the condemnation of land for a grist-mill was held unconstitutional, though the tolls were regulated and discrimination forbidden. In Newell v. Smith, 15 Wis. 101, it was held not constitutional to authorize the appropriation of the property, and leave the owner no remedy except to subsequently recover its value in an action of trespass. 1 Hay v. Cohoes Company, 3 Barb. 47. 2 Ryerson v. Brown, 35 Mich. 333; Sadler v. Langham, 34 Ala. 311. In this last case, however, it was as which this question would be entirely a new one, and where it would not be embarrassed by long acquiescence, or by either judicial or legislative precedents, it might be held that these laws are not sound in principle, and that there is no such necessity, and consequently no such imperative reasons of public policy, as would be essential to support an exercise of the right of eminent domain. But accepting as correct the decisions which have been made, it must be conceded that the term "public use," as employed in the law of eminent domain, has a meaning much controlled by the necessity, and somewhat different from that which it bears generally.2 sumed that lands for the purposes of grist-mills which grind for toll, and were required to serve the public impartially, might, under proper legislation, be taken under the right of eminent domain. The case of Loughbridge v. Harris, 42 Geo. 500, is contra. In Tyler v. Beacher, 44 Vt. 618, it was held not competent, where the mills were subject to no such requirement. See the case, 8 Am. Rep. 398. And see note by Redfield, Am. Law Reg., Aug. 1873, p. 493. 1 See this subject in general discussed in a review of Angell on Watercourses, 2 Am. Jurist, p. 25. 2 In People v. Township Board of Salem, 21 Mich. 259, the court consider the question whether a use which is regarded as public for the purposes of an exercise of the right of eminent domain, is necessarily so for the purposes of taxation. They say: "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 power which the State possesses 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 encroachment 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. "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 farther, and that step is in the same direc The Taking of Property. Although property can only be taken for a public use, and the legislature must determine in what cases, it has been long settled tion. 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 any thing 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 centre of the earth, but he would not be allowed to excavate it indefinitely, lest his 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. The butcher in the vicinity of whose premises a village has grown up, finds himself compelled to remove his business elsewhere, because his right to make use of his lot as a place for the slaughter of cattle has become inconsistent with the superior right of community to the enjoyment of pure air and the accompanying blessings and comforts. The owner of a lot within the fire limits of a city may be compelled to part with the prop erty, because he is unable to erect a brick or stone structure upon it, and the local regulations will not permit one of wood. 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 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 unwilling 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." On this general subject see Olmstead v. Camp, 33 Conn. 532, in which it was very fully and carefully considered. What is a public use is a question |