Farnsworth v. Goodhue

The opinion of the court was delivered by Wheeler, J. There is no occasion to examine into or determine in this case any question concerning the constitutionality of the various provisions of the act incorporating this aqueduct company, for by the terms of the act it was to apply only to entering upon and using lands through which it might “ be necessary for said aqueduct to pass,” and it is neither expressly nor impliedly found that it was necessary for the aquduct to pass through this [211] land. No doubt there might have been land that the aqueduct would net itself actually touch, and still have been so situated that it would have been necessary to enter upon it, and if so, probably the statute would cover such a case of actual necessity. But such statutes are strongly derogatory to common right, and no cases can be brought within them except such as come within their terms with imperative necessity. This is not such a case, and the statute affords no justification of the entry. Judgment affirmed.