Great Falls Manufacturing Co. v. Fernald

Perley, C. J. One of the positions taken by the defendants, I understand to be this ; the original act of incorporation did not authorize the company to flow the land of others without their consent; the act of 1862 relates only to such doings of the company as were authorized by the act of incorporation, to such doings only as were legal and rightful under the act; and therefore this case does not come within the act of 1862, because flowing the land of the defendants without their consent was not authorized by the act of incorporation, and is illegal and wrongful. I have no difficulty in agreeing with the defendants that the origi — 454 — nal act of incorporation did not give the right to flow the land of others without their consent. It gave the power to sell and to hold and use property, in a corporate capacity, for the purposes indicated in the act; but it could not have been intended that the company, under this grant of corporate powers, should have the right to take land, or any interest in it, without the owner’s consent. If such were the intention, the act pro tanto would-be void, because it provided no method of awarding compensation to the owner. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35. But it was not in the lawful and rightful exercise of the powers conferred on the company by the act of incorporation that the cases contemplated by the act of 1862 would arise. If they were exercising their corporate powers rightfully, there could be no grievance, and no damages to assess. That act applies only to cases where the company, in the exercise of those powers, have caused a grievance or damage. All acts of corporations, for which they are responsible in their corporate capacity, are done in the exercise of their corporate powers. If acting within the scope of their general corporate authority they do an injury to others they are answerable like natural persons. In the present case, the petitioners have authority under their charter to construct and maintain dams for certain purposes; if in the exercise of this corporate authority they had caused an injury or damage, they would have been liable to answer for the damage to the person injured in the ordinary course of the law, without resorting to the special remedy provided by this ancillary act. The act of 1862 clearly refers, not to the lawful exercise of the powers conferred by the charter, but to cases where damages and grievances have been caused by the wrongful exercise of the powers derived under the act of incorporation. The petition alleges, that, in the exercise of the powers conferred by the act of incorporation, the company have built and maintained a dam, which causes a grievance and damage to the defendants. This is, of course, wrongful, and not warranted to be done by the charter, though done by the petitioners in the exercise of their corporate powers ; or, in other words, in their corporate capacity; for all corporate acts are done in the exercise of the powers conferred by the charter or act of incorporation. The corporation, in the case stated by the petition, exercise their corporate powers in a way to do a wrong and cause a damage and grievance to the defendants, by building and maintaining a dam, which overflows their land without their consent; and this, I think, is exactly the case contemplated by the act of 1862. We are of opinion that the act of 1862 was intended to reach a case like that set forth in-this petition, where the corporation, in the exercise of their corporate authority to construct and maintain dams, have erected and maintained a dam, by which they overflow the land of another without his consent and without right; that the act was intended to provide a method of ascertaining the damage to the owner in the nature of a compensation for the perpetual right to maintain the dam and flow the land; and that, upon payment of the compensation ascertained according to the act, it was intended the corporation should have the perpetual — 455 — right to maintain the dam and flow the land; and that brings us to the question whether the legislature had constitutional power to pass the act. The act of 1862 proposes to take the right of flowing land from the owner without his consent. This cannot be done unless the right is taken for a public use within the meaning of that term as used in the law on this subject, and in the constitution of this State. No objection is made to the method provided by the act for ascertaining and'paying compensation to the owner. Where property is taken for the public use it may be done by a general law, as in the case of highways; or by special acts, such as have been so often passed in reference to turnpike roads, railways, canals, aqueducts, &c. Backus v. Lebanon, 11 N. H. 19; Concord Railroad v. Greeley, 17 N. H. 47. It is not necessary that the right should pass directly to the public ; it may be given to a corporation technically classed as private, provided the use is of such general benefit as to give it a public character. The present case does not seem to be embarrassed by any objection to the manner in which the right is proposed to be taken, or to the party that is to take it. The question is general whether the legislature have power to take such a right from the owner without his consent as for public use. If this case falls within a class, which is such in general nature and character that the legislature have power to take the right as for the public use, the court cannot inquire whether the power was discreetly exercised in this particular instance. Petition of the Mount Washington Road, 35 N. H. 134. In all governments the right to take private property when required for the public use has been exercised; and in all enlightened and just governments the duty is recognized of providing, where it can be done, for compensation to the owner. Our constitution asserts on this subject a general principle of public law. It states directly that no man’s property shall be taken from him or applied to public uses without his consent, or that of the representative body of the people, and by necessary implication admits the general doctrine that a man’s private property may be taken from him for public uses without his consent b}' the legislature, on the implied condition, however, that he is to receive a just compensation. Bill of Bights, 12th article. The constitution has not undertaken to define what shall be regarded as a public use. That is left to be determined in each individual case by reference to the principles and reasons, upon which the right to take private property for the public use is founded, and by authority. The right of the public to resume private property for the public use, which has been called the right of eminent domain, is said to be implied in the original social compact; and is not limited to cases of urgent necessity, such as occur in war, or the sudden calamity of a great fire; but reaches to all cases of general public utility. JSTon tantum ex sum-ma necessitate quae privatis quoque jus aliquod in aliena concedit, sed ob publicam utilitatem, cui privatas cedere Mi ipsi voluisse censendi sunt, qui in civilem coetum coierunt. Grotius de Jure, H. Lib. III. CXX. S. VII. The general doctrine is stated in the recent — 456 — and mack considered case of Gilmer v. Lime Point, 18 Cal. 225, as follows : "The public use may have relation to any purpose, civil or military, without the compass of the State authority, which subserves the general interest. The only test and criterion of the admissibility of the power are that the particular object tends to promote the general interest in its relation to any legitimate objects of government.” According to Bradley v. The N. Y. & N. H. Railroad, 21 Conn. 294, the use is to be regarded as public, if a general public benefit results from it.” The general statement of the case on the part of the petitioners, is, that, under the authority of the legislature, they associated in a body corporate for the purpose of carrying on the manufacture of cotton and woolen goods, and have expended large sums of money in constructing dams and other works, and in acquiring the right to flow land, and have thereby obtained a water power on Salmon Falls river, sufficient for large and successful works ; that the defendants claim title to a small and not valuable piece of land, which is flowed by the dam of the petitioners ; that they have not agreed on a sale of the right to flow this piece of land, and the defendant, Fernald, has given notice of his grievance. If the defendants unreasonably refuse to part with this right, the business of the petitioners is in danger of being interrupted and greatly embarrassed, and their whole enterprise defeated by the obstinate refusal of the defendants to part with this right on reasonable terms. The question is, whether it is of such public advantage that this obstacle to the successful prosecution of the petitioners’ business should be removed on payment of just compensation to the defendants, that the right would be taken for a public use, within the meaning of the term as used in the law on that subject, and in the constitution of this State? Or, to put the question in a general form, is it of such general public advantage that the streams and waters of this State should be brought into practical use for manufacturing purposes, that a private right standing in the way of an enterprise designed to accomplish extended and connected improvements in the water power of a large stream like the Salmon Falls river, is taken for a public use when taken to advance such an enterprise and remove an obstacle to its success ? If we look to the example of other States, we find that many of them have exercised the power to take the right of flowing land for mills and other works without the owner’s consent. In most cases, the power to do this would seem to have been conceded without question; and so far as my inquiries have gone, in all cases where the right to do this has been questioned in the courts, it has been sustained. In the Mill Dam v. Newman, 12 Pick. 467, the plaintiffs were incorporated with authority to erect and maintain dams, &c.; and the act of incorporation provided that any person or corporation, sustaining any damage by the building of said dams, &c., or from the exercise of any of the rights given by the act to the corporation, might apply to the court ’of common pleas to estimate the damage. It was held that the construction of dams by a corporation in order to obtain a head and fall of the waters of a navigable arm of the sea, whereby to work grist mills — 457 — and mills for other useful purposes, and also to make a highway over dams for the accommodation of all persons at a fixed toll, is an enterprise so far of a public nature as to authorize the legislature to appropriate the property of an individual to carry it into effect. The constitutional authority to apply private property to such a use, was put, in argument, on the ground that "the legislature will not permit an individual, from caprice or obstinacy, to withstand the development of great natural advantages and Putnam, J., in delivering the opinion of the court, says : "In regard to manufacturing establishments is it nothing to the public that great numbers of citizens have the means of employment brought to their homes ? It is among the most pleasant considerations attending this branch of the subject that the interest or benefit arising from manufacturing establishments is distributed quite as much and oftentimes more among the laborers and operatives, than among the proprietors of the works.” In Hazen v. The Essex Co., 12 Cush. 475, the defendants were incorporated for the purpose of constructing a dam across the river Merrimack, and one or more locks in connection with the dam to remove obstructions in the river by falls and rapids, and to create a water power to be used for mechanical and manufacturing purposes. The plaintiff had a mill on a small stream running into the river above the dam, and complained that the dam flowed the water back on his mill. The act of incorporation provided, that, in case of injury caused by the dam, the damages should be ascertained in the method provided for assessing damages caused by railroad corporations. The court held the plaintiff’s only remedy was that given by the act of incorporation, and that it was within the power of the legislature to give the right of flowing the plaintiff’s mill as for a public use. Shaw, O. J., said: "The establishment of a great mill power for manufacturing purposes as an object of great public interest, especially sinc'é manufacturing has come to be one of the great public 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 the right of eminent domain.” In Newcomb v. Smith, 1 Chand. Wis. 71, and in Thien v. Voegtlander, 3 Wis. 714, it was decided that an act authorizing land of others to be flowed by mill dams was constitutional, if the act made suitable provision for compensation to the land-owner, upon the ground that in such case the right to flow was taken for a public use. So it has been held that land taken to drain swamps is taken for a public use, Martwell v. Armstrong, 19 Barb. 166 ; and the right to flow land for the use of a canal, Wabash Canal v. Spears, 16 Ind. 440. A general statement of the decision in Saddler v. Langham, 34 Ala. 311, where it was held that the flowage and private road law of that State was unconstitutional, might seem to imply a contrary doctrine; but it was there conceded that the legislature had power to authorize land to be flowed without the owner’s consent, for mills and works of a certain character, and the decision was put on the ground that the legislature by "the employment of a generic phrase, without explaining the — 458 — different species included in the genus, attempted by words not separable to confer a general authority, a pai't of the patent objects of which are within, and others without, the pale of constitutional power;” and in such case the court held themselves bound to pronounce the whole clause unconstitutional, p. 333. That is to say, the terms of the law were so broad as to include some cases where the land would be taken for a mere private use, and therefore, though in other cases the use would be public, the -whole act was void. That case cannot be regarded as an authority against the power of the legislature to authorize land to be flowed for such a purpose as is set forth in this petition ; and I have met with no other that can be supposed to give any countenance to the position that the exercise of such a power is beyond the general scope of legislative authority. By the constitution of this State, legislative power is conferred on the general court in these terms: "Full power and authority are hereby given to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instructions, either with penalties or without, so that the same be not repugnant or contrary to this constitution, that they may judge for the benefit and welfare of the State.” Constitution, Art. 5. There is nothing in the constitution to restrain this general grant of legislative power from being exercised in reference to this subject of applying private property to public uses. On the contrary, this right is distinctly recognized in the 12th article of the Bill of Bights before cited. There is, therefore, nothing in the constitution which limits the general exercise of legislative authority over this subject. The whole power of the government over it is lodged by the constitution in the general court. The provision that private property shall not be applied to public uses- without the consent of the representative body, may have been introduced to guard against the usurpation of that power by the executive department, in imitation of the royal governors, who had assumed the‘right to dispose of the public lands by executive grant. If we are to follow the example of other governments, and the decisions in other jurisdictions, it would seem to be clear, that to create and improve water power in the streams and waters of a country, is a matter of such general public advantage, that private property taken for that purpose is taken for a public use, within the legal meaning of that term; that, in the language of our constitution, the exercise of the power to grant the right of taking- private property for that purpose in a proper case, would, in the language of the constitution, be for "the welfare and benefit of the State.” And we are led to the conclusion, that, under the ample grant of legislative authority conferred by the constitution on the general court, they had power to pass the law in question; unless there was something in the previous or contemporaneous practice of the province or State; or there is something peculiar in the business and the natural productions and resources of the State, from which we can infer an intention to limit and restrain this general grant of legislative authority in reference to this particular subject of taking a private right to create and improve -water power. — 459 — I have not been able to learn that, at the time when the constitution was adopted in 1792, any private act of the provincial or State legislature had been passed, giving the right to take private property for any public use; but by the general law it was liable to be taken in two classes of cases, namely, for highways and for mills. It is certainly material to observe that when the constitution was adopted, we have no information that private property had been taken without the owner’s consent, either by private act or by the general law, for any other than the two purposes above mentioned, and of these two, one was the right of every owner of a water mill, under the act of 4th Geo., Anno 1718, to flow water on the land of others by any dam built on his own land, or, by license, on the land of others, upon paying the compensation provided by the act. From this it very clearly appears, that, in the legislation and practice of the province and State, it had been long recognized, and was, when the constitution was adopted, as within the general scope of legislative power, to authorize private property to be taken for the purpose of erecting and improving water power in the streams and waters of the State, when, in the opinion of the legislature, the public good required it. If the constitution is to be interpreted by what we must suppose to have been the contemporaneous understanding in reference to the power of the legislature to grant the right of taking private property for such a purpose, the fact that this power was exercised under the general law when the constitution was adopted, and had been, from 1718 to that time, would seem to be decisive. The subsequent repeal of the statute shows that, in the altered condition of the country, the legislature did not consider it to be expedient that every man, who might erect a water mill for any purpose, should continue to have this uncontrolled power of flowing the land of others without their consent. But the repeal itself shows that it was understood to be a matter entirely within the power of the legislature; a power which they could exercise, or forbear to exercise, at their discretion, as in their judgment the public good might require. Looking to the condition of the law on that subject when the constitution was adopted, and the previous practice of the government, we can have no doubt it ivas then understood that the legislature, under the constitution, had power to give the right of taking private property for the purpose of creating and improving water power. The practice under the constitution in reference to this general subject of authorizing private property to be taken for public use, supplies a great number of cases analogous to the present, embracing a wide range of objects, in favor of which the power has been exercised. Soon after the adoption of the constitution, certainly as early as 1794, in the case of the act incorporating a company for constructing locks round the falls in the river Connecticut, acts began to be passed authorizing private property to be taken without the consent of the owners for uses deemed to be public. These cases include acts incorporating turnpikes, canals, aqueducts, boom companies, railways, &c. It would seem by recurring to this practice of the legislature, that the right to authorize private property to be taken for public uses, has not, in this State, been nar — 460 — rowed in construction by any technical rule, confining the exercise of the right to any particular class of subjects, but has been extended generally to cases where an enterprise promising important public advantages was liable to be defeated or embarrassed by the unreasonable refusal of individuals to part with the private right. It is not easy to distinguish in principle the present case from the numerous grants of corporate powers with this right to companies incorporated to improve the natural advantages of rivers and streams, for purposes of transportation by canals and booms. In those cases, as in this, the object was to improve those natural advantages for the public benefit. There are also several instances, in which grants have been made to flow lands by mill dams, that cannot, in any point material to this question, be distinguished from the present case; such as the grant to build mills and dams on the river Connecticut between Littleton and Waterford, in 1810; to the Sunapee Company in 1820; and to the Amoskeag Company in 1861. This is not, then, a new power, claimed for the first time in this instance, but a power exercised by the provincial and State governments under a general law, from 1718 to 1792, and since by the legislature in repeated private acts. Whether the public have such an interest in improving the water power of the State and turning it to practical use, as will authorize the legislature to take private property for that purpose, may very much depend on the character of the business and employments of the people, and on the natural productions and resources of the State. In this point of view there is certainly nothing in the peculiar circumstances of the State to limit and restrain the ordinary exercise of legislative authority over this subject. Our soil and climate forbid us to enter into competition with the great producing States of the Union, in the sale of such agricultural productions as are sent to the great markets of the country ; we are purchasers, and not vendors, of such productions. The prosperity of the farmer mainly depends with us on having close at hand a market for such products of his farm as cannot be advantageously transported for long distances, and in which he does not come into competition with the great producers of the West. Such a market can be furnished only by his neighbors, who are engaged in mechanical and manufacturing pursuits. The farmer, therefore, has an obvious and deep interest in those pursuits ; and large manufacturing establishments not only afford a market for agricultural productions, but give profitable employment to great numbers of men and women, disburse large sums of money, and create a new demand for wood, timber, and other commodities. The business of manufacturers and mechanics in this State is largely dependent for success on the use of water power. To create a water power in a large stream sufficient for manufacturing on an extensive scale, it is generally found necessary to dam the water in the stream itself, and also to raise and retain it in natural or artificial reservoirs connected with the stream, as has been done by these petitioners, in order to ensure an adequate and constant supply at all seasons of the year. In mosteases, to do this, the right to flow the land of numerous proprie — 461 — tors must be obtained; and an individual, or a few individuals, might defeat or greatly embarrass the whole enterprise by an unreasonable and obstinate refusal to part with the right. In such a case can it be doubted, that, to remove this obstacle to a great public improvement, in which large numbers are interested, would be, in the language of the constitution, "for the benefit and welfare of the State;” and that a private right taken for that purpose, would be taken for a public use within the legal meaning of that term ? No State of the Union is more interested than ours in the improvement of natural advantages for the application of water power to manufacturing purposes. Nature has denied to us the fertile soil and genial climate of other lands, but by -way of compensation has endowed us with unrivalled opportunities of turning our streams of water to practical account. The present prosperity of the State is largely due to what has already been done towards developing these natural advantages; and there is no assignable limit to our resources in this respect if extended and connected enterprises for the improvement of the water power in the State should be successfully prosecuted hereafter. In no part of the world have the public a deeper interest in the success of all undertakings, which promise to assist in the development of these great natural advantages. Whether, therefore, we look to the interpretation which has been given in other jurisdictions to the term •public use, in reference to the right of taking private property, for such a use; to the legislative practice under the provincial and State governments before and at the time when the constitution was adopted; to the language of the constitution itself; to the early and continued legislative practice under the constitution; to the decisions of the courts in this State; or to the character of our business and the natural productions and resources of the State, we are drawn to the conclusion that the legislature have power to authorize a private right that stands in the way of an enterprise set on foot for the improvement of the water power in a large stream like this river, to be taken without the owmer’s consent, if suitable provision is made for his compensation; and that the act of 1862 is constitutional and valid. The petition does not allege that Sarah W. Worster has given notice of her grievance, and as to her it does not appear that the provisions of the act have been complied with; but the demurrer is general to the whole petition, and must be overruled.