eign. The constitutional provision referred | the doctrine of public use, has used expresto did not create the power, but is a sions similar to those which we have used limitation upon its exercise. Private prop- above. Spring v. Russell, 7 Me. 273; Lawerty can be taken only for public uses, and ler v. Baring Boom Co. 56 Me. 445; Riche then only in cases of public exigency. v. Bar Harbor Water Co. 75 Me. 91; Hamor Whether there is such an exigency, whether v. Bar Harbor Water Co. 78 Me. 132, 3 Atl. it is wise, and expedient or necessary, that 40; Farnsworth v. Lime Rock R. Co. 83 Me. the right of eminent domain should be ex- 440, 22 Atl. 373; Ulmer v. Lime Rook R. ercised, in case the use is public, is solely for Co. 98 Me. 580, 66 L. R. A. 387, 57 Atl. the determination of the legislature. The 1001. But it is to be observed that in none legislature, however, cannot make a private of these cases was any question like the use public by calling it so. 15 Cyc. Law & precise one before us under consideration. Proc. p. 580. Whether the use for which it In each the question concerned a use is granted is a public one must, in the end, which was public, even by the narrowest be determined by the court. Kennebec definition of a public use, a use in Water District v. Waterville, 96 Me. 234, which the public had not only an indirect 52 Atl. 774. The right of the state to con- benefit, but in which the public had a demn property for public uses may, of right to participate directly. These cases course, be exercised through the agency of relate to railroads, water companies, broom private corporations, formed for private companies, canals, and the improvement of gain. Riche v. Bar Harbor Water Co. 75 public streams. As to such cases there is Me. 91. So that the real question before now no doubt. Their uses are rightly the court now is this: Is the manufactur- deemed public. The public, or such part ing, generating, selling, distributing, and of the public as has occasion to, may disupplying of electricity for manufacturing rectly enjoy them. Such uses are of great or mechanical purposes a public use for public benefit. which private property may be taken by the strong hand of the state? It has been pressed upon us with great force and ability that the great public benefit and utility of manufacturing enterprises in this state are such as of themselves to give to the creation or development of power for their benefit the character cf a public use. We must, therefore, inquire to what extent public benefit and utility may be regarded as controlling in determining what is a public use. The term "public use" is difficult of exact definition, and most courts have avoided giving one. Public benefit is, however, one of the essential characteristics of a public use. There is no doubt that the conception of public benefit and public utility, and the general welfare of the state, even indirectly promoted, has had much to do in tempering the opinions of the courts. The term is a flexible one, and necessarily has been of constant growth, as new public uses have developed. Randolph, Em. Dom. 55. And it has been said that what is a public use under eminent domain statutes may depend somewhat upon the nature and wants of the community for the time being. Scudder v. Trenton Delaware Falls Co. 1 N. J. Eq. 694, 23 Am. Dec. 756. It is beyond question that any instrumentality which tends to promote the manufacturing industries of a state, to furnish labor for its mechanics, to create the need of markets for its products, and to develop and utilize its natural advantages is of great public benefit. And our attention has been called to many cases where this court, in discussing

When, however, we leave those classes of cases which are universally regarded as public, and come to those which stand on debatable ground, we find that the doctrine that public benefit and utility is a justification for the exercise of the right of eminent domain has been asserted more especially in four classes of cases: Those relating to the development of water power for mills under general or special mill or flowage acts; those arising under drainage acts for the reclamation of wet and marshy lands; those relating to the irrigation of arid lands; and those relating to the promotion of mining. Of the mining acts, outside of states whose Constitutions in terms recognize mining as a public use, it may be said that the authorities differ as to the effect of the mere public benefit. Overman Silver Min. Co. v. Corcoran, 15 Nev. 147; Consolidated Channel Co. v. Central P. R. Co. 51 Cal. 269. And it was held in Fallbrook Irrig. District v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56, that the irrigation acts of the western states are sustainable on the ground of a regulation of the common interests of the owners,-a doctrine applied elsewhere to drainage acts.

It is in the early cases in Massachusetts that we find that mill acts, giving the right to flow the land of others for the purpose of creating a water power for mills, and drainage acts, for the reclamation of waste lands, were first sustained under the eminent domain clause of the Bill of Rights; and it would seem that the doctrine has been accepted, in most of the states where it

This

is in vogue, on the authority of the Massa- | dam could be taken as for public use. chusetts decisions. The history of those de- language was used: "In a broad and comcisions is instructive. In Fiske v. Framing prehensive view, such as has been heretofore ham Mfg. Co. (1831) 12 Pick. 68, it was de- taken of the construction of this clause of clared that the mill acts, by which the own- the Declaration of Rights, everything which er of a mill privilege was authorized to tends to enlarge the resources, increase the build a dam on his own land for the purpose industrial energies, and promote the producof creating a water power, and thereby flow tive power of any considerable number of inthe water of the stream back upon the land habitants of a section of the state, or which of an upper proprietor, rest only partly for leads to the growth of towns and the creatheir justification upon the interest which tion of new sources for the employment of the community at large has in the use and capital and labor, indirectly contributes to employment of mills, and partly upon the the general welfare and to the prosperity of nature of the property, which is often so the whole community." The mill acts were situated that it could not be beneficially used cited as examples of a public use, and it without the aid of this power. See Vea- was declared that, "if it is lawful and conzie v. Dwinel, 50 Me. 479. In Boston & stitutional to advance the manufacturing or R. Mill Dam Corp. v. Newman (1832) 12 mechanical interests of a section of the state. Pick. 467, 23 Am. Dec. 622, it was held that by allowing individuals acting primarily for the construction under legislative authority their own profit to take private property, of a dam across a navigable arm of the sea, there would seem to be little, if any, room for the purpose of obtaining a head and fall for doubt as to the authority of the legis of water whereby to work gristmills, run lature, acting as the representatives of the manufactories and other mills for other use- whole people, to make a similar appropriaful purposes, and also to make an avenue tion by their own immediate agents in order or highway over the dam, was an appropria- to promote the agricultural interests of a tion to public uses within the provision of large territory." The general drainage act the 10th article of the Bill of Rights. The for the improvement of meadows was also court, arguendo, said: "Here was a crea- cited as providing for an analogous public tion of an immense perpetual mill power, as use. But in Murdock v. Stickney (1851) well as a safe and commodious avenue. 8 Cush. 113, and Bates v. Weymouth Iron We should be at a loss to imagine Co. 8 Cush. 548, it was held that the any undertaking . . in which the principle on which the mill acts are "foundpublic had a more certain and direct inter- ed is not, as has sometimes been supposed. est and benefit." The court cited the mill the right of eminent domain, the sovereign acts as analogous, on the ground that they right of taking private property for publie were "greatly beneficial to the public." In use." The mill acts were said to be only a Hazen v. Essex Co. (1853) 12 Cush. 475, the slight modification of the rule of the comdeclared purposes of the defendant corpora- mon law for regulating the rights of protion were to improve the navigation of the prietors, on one and the same stream, from Merrimac river, and to construct a dam its rise to its outlet, in a manner best calacross it for the purpose of creating a waterculated, on the whole, to promote and secure power to be used for mechanical and manufacturing purposes. The court, speaking of the latter purpose, said: "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 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." This was affirmed in Com. v. Essex Co. (1859) 13 Gray, 239. In Talbot v. Hudson (1860) 16 Gray, 417, a large area of land in different towns, and owned by many owners, was overflowed by water raised by a dam, which it was sought, under legislative authority, to remove, for the purpose of reclaiming the land. It was held that the

their common rights in it. "Whether," the court says in Murdock v. Stickney, "if this were an original question, this legislation [mill act] would be considered as trenching too closely upon the great principle which gives security to private rights, it seems now too late to inquire."

Later the Massachusetts court, in Lowell v. Boston (1873) 111 Mass. 454, 15 Am. Rep. 39, said that the doctrine of public use asserted in Hazen v. Essex Co. 12 Cush. 475, rested upon the improvement of navigation provided for, and not upon the general benefit flowing from the establishment of mills. And the court in that case said that the mill acts, and drainage acts, as in Talbot v. Hudson, 16 Gray, 417, were not to be justified under the right of eminent domain, and that they involved no other governmental power than that "to make, ordain, and establish all manner of whole

But, following the earlier Massachusetts cases, in time at least, it was held in Great Falls Mfg. Co. v. Fernald (1867) 47 N. H. 444, that the legislature had power to authorize a corporation established for manufacturing purposes to flow back water onto the land of another, without his consent, in order to create the water power used in carrying on its works. This was held to be a public use, on the ground that it was for general public utility, and Boston & R. Mill Dam Corp. v. Newman, 12 Pick. 467, 23 Am. Dec. 622, and Hazen v. Essex Co. 12 Cush. 475, were cited as authorities to that effect. The court also cited the "general welfare" clause in the New Hampshire Bill of Rights, similar to that in Massachusetts. The court, in New Hampshire, did not waver from this public use doctrine (Ash v. Cummings, 50 N. H. 592; Amoskeag Mfg. Co. v. Head, 56 N. H. 386; Amoskeag Mfg. Co. v. Worcester, 60 N. H. 522), except to say that the flowage act went to the verge of constitutional power (Salisbury Mills v. Forsaith, 57 N. H. 124), until Rockingham County Light & P. Co. v. Hobbs, 72 N. H. 531, 66 L. R. A. 581, 58 Atl. 46, in which case the court said of Great Falls Mfg. Co. v. Fernald, 47 N. H. 444: That case is sui generis, and is limited to flowage rights. That and other cases cannot be regarded as deciding the "public use" in the Bill of Rights is synonymous with public benefit, public advantage, or any use that is for the benefit and welfare of the state. Nevertheless, the court said that the conclusion that the use of land for the production and distribution of power may be a public use is shown by the mill acts and the decisions respecting them; citing the Fernald Case in Massachusetts, and its own case of Amoskeag Mfg. Co. v. Head.

some and reasonable orders, laws, statutes, | Kinnie v. Bare, 68 Mich. 625, 36 N. W. 672; and ordinances,' as the general court 'shall 1 Lewis, Em. Dom. § 163. judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same.' Mass. Const. chap. 1, art. 4, § 1." In the same case, speaking of Dorgan v. Boston, 12 Allen, 223, and Dingley v. Boston, 100 Mass. 544, in which the right of eminent domain for certain public improvements was contested, the court used this significant language: "This benefit [the promotion of the general prosperity and public welfare] was anticipated, and was doubtless one of the influential inducements to the adoption of the statutes giving authority for the improvements. It was not in this general advantage, however, that the justification under the Constitution for such an exercise of power was found, but in the direct and special public service." And finally, in Turner v. Nye (1891) 154 Mass. 579, 14 L. R. A. 487, 28 N. E. 1048, where the court sustained the constitutionality of an act authorizing the flowing of flats for the raising of a pond for the culture of fishes, but expressly on the "good and welfare" clause of the Constitution cited by us, and not on the right of eminent domain, the court said: "It is upon this provision [the 'good and welfare' clause] that the mill acts have been placed finally in this state, after what appear at times to have been somewhat conflicting It may be doubted whether, as new legislation, they could be sustained as an exercise of the right of eminent domain." If we understand the purport of the later Massachusetts decisions, it is to the effect that the earlier cases of Boston & R. Mill Dam Corp. v. Newman, 12 Pick. 467, 23 Am. Dec. 622; Hazen v. Essex Co. 12 Cush. 475, and Talbot v. Hudson, 16 Gray, 417, are no longer authority for the doctrine that either the general mill acts, or special legislation for taking private property for the purpose of creating a water power for manufacturing purposes, can be sustained as involving public uses, on the ground of great public benefit or utility. We have no such broad and comprehensive "good and welfare" provisions in our Constitution as the one referred to in the Constitution of Massachusetts, and, if we had, it is difficult to see why such a legislative authority would not be limited by the necessarily implied provision that private property shall be taken only for public uses. Besides, it is held, and we think properly, that the term "public use" cannot be construed to be the equivalent of "general welfare" or "public good." It must receive a more restricted definition.

views.

In Vermont the ruling has been the other way. The court there declined to follow Massachusetts and New Hampshire, and held that, under a mill flowage act the exercise of mill flowage rights for the benefit of mills, even of gristmills, was not for a public use. Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398. In Re Barre Water Co. 62 Vt. 27, 9 L. R. A. 195, 20 Atl. 109, it was held that a water company, having authority to take private waters for the extinguishment of fires, and for domestic, sanitary, and other purposes, cannot use the water of a private stream for private manufacturing purposes. And in Avery v. Vermont Electric Co. (1903) 75 Vt. 235, 59 L. R. A. 817, 98 Am. St. Rep. 818, 54 Atl. 179, it was held that the generation of electricity by an individual for the purpose of supplying

as electrical power or water power, may be regarded as a public use. But that position cannot be sustained. Two cases are cited. In Edison United Mfg. Co. v. Farmington Electric Light & P. Co. 82 Me. 464, 19 Atl. 859, although the word "power" appeared in the corporate name of the defendant, the case does not show what authority it had or claimed as to the creation or distribution of electric power. That question was not discussed in the opinion of the court. The defendant was treated as an electric light company. In Rockland Water Co. v. Camden & R. Water Co. 80 Me. 544, 1 L. R. A. 388, -15 Atl. 785, the right to the exercise of eminent domain for creating water power was not under consideration.

within the meaning of the Constitution." State v. Edwards, 86 Me. 102, 25 L. R. A. 504, 41 Am. St. Rep. 528, 29 Atl. 947.

Taking the decided cases generally, we think that the weight of authority does not sustain the doctrine that a public use, such as justifies the taking of private property against the will of the owner, may rest solely upon public benefit, or public interest, or great public utility. This was, no doubt, the early doctrine in Massachusetts, as applied to mill acts and drainage acts, and we think the cases show that the doctrine was adopted in other states largely on the authority of the Massachusetts decisions. But, plainly, it has since been repudiated by Massachusetts herself. Something more than mere public benefit must flow from the contemplated use. Gaylord v. Sanitary District, 204 Ill. 576, 63 L. R. A. 582, 98 Am. St. Rep. 235, 68 N. E. 522. Public ben

lic use. Re Niagara Falls & W. R. Co. 108
N. Y. 375, 15 N. E. 429; Avery v. Vermont
Electric Co. 75 Vt. 235, 59 L. R. A. 817, 98
Am. St. Rep. 818, 54 Atl. 179. Neither
mere public convenience nor mere public
welfare will justify the exercise of the
right of eminent domain.
68 Mich. 625, 36 N. W. 672. If the doc-
trine of public utility were adopted in its
fullest extent, there would practically be no
limit upon the exercise of this power.
Beekman v. Saratoga & S. R. Co. 22 Am.
Dec., note, pp. 688, 704 (3 Paige, 45).

Kinnie v. Bare,

See

But Jordan v. Woodward (1855) 40 Me. 317, was a case arising under our mill act. Its constitutionality was sustained, but only on the ground of its great antiquity and the long acquiescence of our citizens in its provi-efit or interest is not synonymous with pubsions. The court said that it pushed the power of eminent domain to the very verge of constitutional inhibition, and added: "But the reasons in which this policy originated have long since ceased to exist. Private capital has largely accumulated, and now seeks investment in mills of various descriptions, or in other enterprises for private gain. That the existence of water mills is a matter of public convenience at this day is undeniable. So, too, is the existence of the shop of the smith, the store of the grocer, the house of the innholder, and a great variety of business enterprises in which our citizens employ their labor and capital. In fact, there is no branch of lawful business which may not contribute to the public good, and for which there may not, to a certain extent, exist a public necessity. Yet to authorize the appropriation of private property for all these various purposes would be destructive of private rights, and unsettle the tenure by which property is holden." These general views were emphasized in Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185, and they have continued to express the law of this state until the present time. The doctrine of Jordan v. Woodward, basing the constitutionality of the mill act upon "great antiquity" and "long acquiescence," and not upon "public benefit," has never been extended, and we think it should not be. Mr. Lewis, in his work on Eminent Domain, after reviewing the cases, says (§ 181): "Sawmills and gristmills, carding and fulling mills, cotton gins and other mills, which are regulated by law and obliged to serve the public, are undoubtedly a public use. But, as respects all other kinds of mills, although they may be a public benefit, they are not a public use

Judge Cooley, in his work on Constitutional Limitations, 6th ed. p. 653, says: "Nor could it be of importance that the public would receive incidental benefits, such as usually spring from the improvement of lands or the establishment of prosperous private enterprises. The public use implies a possession, occupation, and enjoyment of the land by the public at large, or by public agencies; and a due protection to the rights of private property will preclude the government from seizing it in the hands of the owner, and turning it over to another on vague grounds of public benefit to spring from the more profitable use to which the latter may devote it." And again, on page 655: "That only can be considered [a public use] where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare which, on account of their peculiar character, and the difficulty-perhaps impossibility-of making provision for them otherwise, is alike proper, useful, and needful for the government to provide." There is perhaps no general definition more satisfactory than this one. And we think there