Elting Woolen Co. v. Williams

Park, J. We think the case of The Occam Co. v. The Sprague Manufacturing Co., 35 Conn., 496, governs this case, and decides this controversy in favor of the respondent. In that case it appeared that when the Spragues erected their mill they reserved a small portion of their water power for future use in connection with their mill privilege as circumstances might require; and it appearing to the court that the amount reserved was not unreasonable, in order to provide for contingencies that might arise in' the construction of their works, and it further appearing that the reservation was made in good faith and with the design to appropriate the power reserved at some future time to milling purposes, the court held that the reservation was in contemplation of the statute a part of the mill-site or mill-privilege belonging to the Spragues, and was therefore protected by the statute. The construction given to the act in that ease clearly requires us to hold that the fall in controversy in this case [317] became a part of the mill-privilege of the grantor of the respondent as soon as the same was purchased. It can make no difference in principle that the respondent negotiated the purchase for his father, who then owned the mill-site adjoining; or that the deed was taken in the name of the respondent, and so continued when this proceeding was brought; for the case finds that the purchase was made by the father through the son as an agent. The father owned the equitable interest, and could have compelled the son at any time to convey to him the legal title. The case therefore must be considered just as it would have been if the deed had been taken in the name of the father instead of that of the son, and these proceedings had been brought against him. If such had been the fact, no distinction in principle could be made between the present case and the one referred to, in favor of the latter. There was no intention in that case to appropriate the power reserved to immediate use, or at any definite time, and it had remained in the same unimproved condition for many years. In the case under consideration, no reasonable opportunity was afforded for carrying out the object of the purchase before the petition was brought; and the fact that proceedings seem to have been stayed for months afterwards, while this controversy was pending and the result of it uncertain, is of but little importance, so long as the original intent to annex the fall to the site above remained unabandoned. We think, therefore, that that case is decisive of the present one. But if this was not so, we think, on another ground, that the decision must be in favor of the respondent. This water power was purchased in good faith for milling purposes. We have then a case where two parties seek to appropriate the same power to the same public use,—one by virtue of ownership, and the other by proceedings under the flowage act. In the case of Curtiss v. Smith, 35 Conn., 156, we said that the flowage act favors the owner when all other circumstances are equal. This is shown by the fact that the first enactment on the subject excluded all mill-sites from the operation of the statute. This act was followed by another [318] that excluded all mill-sites whereon a mill or mill-dam had been lawfully erected and used, unless the right to maintain a mill thereon had been lost or defeated. The first statute considered that the owner of a mill-site would appropriate it to the uses to which it was peculiarly adapted and chiefly valuable, and that therefore the object of the statute would be accomplished without taking it from the owner. The last enactment requires more probability than the first that the owner will so appropriate his mill-site; but both acts show a reluctance to take water power from the owner, so long as any reasonable expectation remains that he will carry out the object of the statute, that it should be devoted to milling purposes. Suppose the owner of water power commences to erect a mill thereon for milling purposes. No one would contend that it could be appropriated by another party under the flow-age act, no matter whether a mill or mill-dam had been lawfully erected and used thereon or not. The object of the statute does not apply to the case. There is no necessity for* its application. If the owner voluntarily appropriates his site to the public use specified in the statute the object of the law is accomplished. The rights of the owner, therefore, should be respected when all other circumstances are equal, to say the least, and more especially when the law considers it a hardship to deprive the owner of his property, and never does it unless necessity requires it for the public good. Wherein does this case differ in principle ? If this water power is taken by the petitioners, they can do no more than devote it to milling purposes. But the respondent’s grantor had just purchased it for the express purpose of so devoting it, when this petition was brought. Buying it in good faith to appropriate it to milling purposes within a reasonable time under all the circumstances, was commencing the appropriation ; and surely the owner ought to have a reasonable opportunity to accomplish his object. And, furthermore, the day after the purchase was made, and before the commencement of this suit, some work was done to prepare the ground for its designed rise. [319] We think, therefore, the grantor of the respondent was first in the commencement of proceedings to appropriate this water power to public use,- and was therefore first in right. French v. Braintree Manufacturing Co., 23 Pick., 216; Lincoln v. Chadbourne, 56 Maine, 197. The petitioners claim that they were negotiating to purchase the water power when the respondent made the purchase for his father, and that this fact was well known to him at the time; and that, inasmuch as the flowage act requires as a condition precedent to the bringing of a petition, that the petitioners should endeavor to agree with the owner as to the damages that should be paid for the right to flow, this negotiation should be considered as the commencement of proceedings so far as the respondent is concerned. But it is clear that negotiations to purchase cannot be so regarded. It has ever been held that the service of process is the commencement of a suit, and we see nothing in a case of this character that requires a different rule. We advise the Superior Court to render judgment for the respondent. In this opinion the other judges concurred.