FROM MERRIMACK CIRCUIT COURT. It seems to me the position of the plaintiffs, that the constitutionality of the flowage act of 1868 cannot be raised upon the demurrer, is not tenable.
It is true, the petition states that the construction of the dam is of public use; but it also states specifically, as it should, what that use is, viz., to render the water-power of Merrimack river at the Amoskeag falls available for the use of mills and works situated below, erected and to be erected for various manufacturing purposes set out in the petition.
The fact being thus before the court, I take it to be a question of law whether the use is of such a character as to come within the true interpretation of article 12 of the bill of rights, and the statute under which the right to flow is claimed. In this view, the allegation in the petition that the use is public is immaterial, being an inference or conclusion of law, and is not therefore admitted by the demurrer.
The facts, which are well stated in the petition, and so admitted by the demurrer, undoubtedly show a strong case of a public use, provided the term "public use" in the constitution is to receive an interpretation sufficiently broad to cover a taking of private property in any case for the improvement of a water-power to be employed by private persons for manufacturing purposes. The interests involved are very large, *Page 400 and the public benefits and advantages which arise from manufactures, by stimulating the growth of towns and cities and thus adding to the material prosperity of the state, are not to be denied.
So far as I can see, the real question presented for our consideration here is identical with that decided in Company v. Fernald, 47 N.H. 444; and the position of the defendant cannot be sustained without directly overruling that case. I fully appreciate the argument against the conclusion reached by the court in that case. That argument is very clearly and forcibly stated by Mr. Carpenter, in his brief in Ash v. Cummings,50 N.H. 592, as well as by the defendant's counsel in the present case; — see, also, Cooley's Const. Lim. 534 et seq., notes and cases cited, Sedgw. on Stat. and Const. Law (2d ed.) 451, Tyler v. Beecher, 44 Vt. 648; — and if the question could properly be regarded as an open one, I am not now prepared to say what my conclusion would be upon it. But I think it is not now to be regarded as an open question in this state. It was raised, and vigorously and ably argued by counsel, with respect to this very law, in Ash v. Cummings, supra; and, although it may not be said in the opinion, in so many words, that the doctrine of Company v. Fernald was sustained and applied, the court could hardly have taken so much pains to give a construction to the law which would bring it within the constitution as to the matter of compensation to the land-owner, if it had been supposed that the law was fatally defective by reason of its conflict with the constitution in this more vital point.
The whole scope of the opinion in that case, and especially the suggestions as to granting an injunction under certain circumstances, — pages 620, 621, — show that the court went upon the ground that, when proper security as to compensation was furnished, the mill-owner might proceed under the act; and this clearly implies that there might be a taking for a use not public, in the strict sense contended for by the defendant, — as for a fort, a school-house, or a highway, — but for a use public in the broader sense — of utility, advantage. Upon the authority of these two cases, and without discussing the arguments upon one side and the other of the important question, which I think is fairly raised in the present case, I am inclined to hold that this demurrer must be overruled.
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