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Lowell v. Boston.

poration. Such an appropriation of property is justified, and can only be justified, by the public service thereby secured in the increased facilities for transportation of freight and passengers, of which the whole community may rightfully avail itself. The franchises of the corporation are held charged with this duty and trust for the performance of the public service, for which they were granted. Commonwealth v. Wilkinson, 16 Pick. 175. Same v. Boston & Maine Railroad, 3 Cush. 25, 45. Old Colony & Fall River Railroad Co. v. County of Plymouth, 14 Gray, 155,

161.

This right of eminent domain is often allowed to be exercised in favor of private aqueduct companies. Here, too, the public service, intended as the object of the grant of the right, is obvious. And although the interests of the aqueduct company are ordinarily relied upon to secure the proper performance of the service, yet, in case of any failure or abuse, the obligation may doubtless be otherwise enforced. Lumbard v. Stearns, 4 Cush. 60.

The mill acts, so called, are often referred to as authorizing the exercise of the right of eminent domain by private parties for their exclusive private benefit. And the language of the court, used arguendo, has been sometimes such as to imply that the growth and prosperity of manufacturing and other industrial enterprises were of such importance to the public welfare, as to justify the exercise of the right of eminent domain in their be half, as a public use. Boston & Roxbury Mill Co. v. Newman, 12 Pick. 467. Hazen v. Essex Co. 12 Cush. 475, 478. Talbot v. Hudson, 16 Gray, 417, 426.

That mills for the sawing of lumber for purposes of building, grinding grain for food, and the manufacture of material for clothing, may be of such necessity to a community, especially in the early settlement of a country, as to make their establishment a provision for a public service, we do not question. It is doubtless within the power of the Legislature to declare the existence of a public exigency for the establishment of a mill, for which the right of eminent domain may properly be exercised; as in the case of the Boston & Roxbury Mill Corporation, and the Salem

Lowell v. Boston.

Mill-dam Corporation. What may be the limits of legislative power in that direction, and whether there are any limits except in the sound discretion of the Legislature, it is needless now to inquire. We are satisfied that the mill acts are not founded upon that power, and do not authorize its exercise."

The advantages to be derived from a running stream by the several riparian proprietors, are of natural right. Each one may lands, in a rea

make use of its waters, as they flow through his sonable manner, for such purposes as they are adapted to serve. In order that each may have his opportunity in turn, each is entitled to have the water allowed to flow to and from his land as it has been accustomed to flow, with only such modifications as result from such reasonable use. Hence, all proprietors upon a stream, from its source to its mouth, have, in a certain sense, a common interest in it, and a common right to the enjoyment of all its capacities. Among those capacities no one is more important than that of the force of the current to supply power for the operation of mills. To make that force practicably serviceable requires a considerable head and fall at the point where it is to be applied; often more than can be gained within the limits of one proprietor. The use of the stream in this mode has always been regarded as a reasonable use, notwithstanding the effect of the dam, by which the head is created, to retard the water in its flow to the proprietor below, and to set it back and thus diminish or destroy the force of the current above. One who thus appropriates the force of the current is in the enjoyment of a common right, in which he is protected, although he may thereby prevent a like use subsequently by the proprietor above. Hatch v. Dwight, 17 Mass. 289, 296. Cary v. Daniels, 8 Met. 466. Gould v. Boston Duck Co. 13 Gray, 442. But this protection extends no farther than to justify the appropriation of a part of that quality of the stream, which, until so appropriated, is common to all. It does not justify any, even the least, injury to land outside the channel. Without some law to control, the mill owner would be exposed, not merely to the liability to make just compensation for injuries thus occasioned, but to harassing suits for damage and to abatement of his dam as causing a nuisance. This liabil

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Lowell v. Boston.

ity and the inevitable controversies growing out of conflicting rights in the stream itself, tending to defeat all advantageous use of its power, led to the adoption of laws regulating and protecting the beneficial use of streams for mill purposes. The St. of 1795, c. 74, is introduced by the recital, "Whereas the erection and support of mills, to accommodate the inhabitants of the several parts of the State, ought not to be discouraged by many doubts and disputes, and some special provisions are found necessary relative to flowing adjacent lands and mills held by several proprietors." But there is no public service secured through the mill acts, except so far as it may result incidentally, and as the inducements of private interest may lead mill owners to devote their mills to purposes favorable to the public accommodation. The same rights and protection are secured to all who may be possessed of sites for mills, whatever the purpose for which their mills may be designed, and however useless for all purposes of public accommodation or advantage. There is no discrimination in this respect, and no provision to secure any public service that may be supposed to have been contemplated. Further than this, each proprietor is allowed to avail himself of the rights secured by the mill acts, in his own mode and for his own purposes, at his own discretion, without the intervention of any public officer or other tribunal or board, to whom such a governmental function as the exercise of the right of eminent domain is ordinarily entrusted, when not under the special direction of the Legislature itself.

A consideration, still more conclusive to this point, is, that in fact no private property, or right in the nature of property, is taken by force of the mill acts, either for public or private use. They authorize the maintenance of a dam to raise a head of water, although its effect will be to overflow the land of another proprietor. This right of flowage is sometimes inaccurately called an easement. Hunt v. Whitney, 4 Met. 603. Talbot v. Hudson, 16 Gray, 417, 422, 426. But it is not so. It confers no right in the land upon the mill owner, and takes none from the land owner. Murdock v. Stickney, 8 Cush. 113. Storm v. Manchaug Co. 13 Allen, 10. In Murdock v. Stickney, Chief Justice Shaw remarks in reference to the mill acts, "The prin

Lowell v. Boston.

ciple on which this law is founded is not, as has sometimes been supposed, the right of eminent domain, the sovereign right of

taking private property for public use. It is not in any proper senae a taking of the property of an owner of the land flowed, nor is any compensation awarded by the public." In Bates v. Weymouth Iron Co. 8 Cush. 548, 553, he says, "It is a provision by law, for regulating the rights of proprietors, on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole, to promote and secure their common rights in it." Similar declarations are made in Fiske v. Framingham Manuf. Co. 12 Pick. 68. Williams v. Nelson, 23 Pick.

141.

This regulation of the rights of riparian proprietors, both in respect to the stream and to their adjacent lands, liable to be affected by its use, involves no other governmental power than that "to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances," as the General Court "shall 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." Const. of Mass. c. 1, § 1,

Art. IV.

All individual rights of property are held subject to this power, which alone can adjust their manifold relations and conflicting tendencies. The absolute right of the individual must yield to and be modified by corresponding rights in other individuals in the community. The resulting general good of all, or the public welfare, is the foundation upon which the power rests, and in behalf of which it is exercised; whether by restricting the use of private property in a manner prejudicial to the public; Commonwealth v. Alger, 7 Cush. 53; or by imposing burdens upon it for the protection or convenience in part of the public; Goddard, Petitioner, 16 Pick. 504. Baker v. Boston, 12 Pick. 184, 193. Salem v. Eastern Railroad Co. 98 Mass. 131; or by modifying rights of individuals, in respect of their mutual relations, in order to secure their more advantageous en joyment by each.

Lowell v. Boston.

It is pro bono publico that general provisions of law exist by which joint tenants and tenants in common of houses and mills may require necessary repairs to be made, with indemnity out of the joint rents or income for the cost thereof. Calvert v. Aldrich, 99 Mass. 74. Upon the same principle one joint tenant is allowed to sever the joint tenancy by conveyance or partition, and thus change the nature of the estate of his co-tenant, as well as his own. Shaw v. Hearsey, 5 Mass. 521. Gen. Sts. c. 136, § 1.

Estates in common may be divided at the suit of any one of the co-tenants; and if not conveniently or advantageously divisible equally, one may be required to accept less than his full share, with an equivalent in money for the deficiency. Hagar v. Wiswall, 10 Pick. 152. Buck v. Wolcott, 13 Gray, 268. And by a recent statute, under certain conditions, the whole may be sold, and the proceeds in money divided instead of the land. St. 1871, c. 111.

Upon the same principle, proprietors of wharves, or of general fields, affected by a common interest or a common necessity, are allowed to adopt measures to secure their common advantage, although burdens or restrictions result therefrom which must be shared by the minority, as well as the majority, by whose determination the measures were adopted. Gen. Sts. c. 67. Wright v. Boston, 9 Cush. 233.

No other power was exercised for the construction of drains and sewers, until 1841, when cities and towns were authorized to exercise for that object the power of taxation. St. 1841, c. 115. The property in such drains and sewers was by the same act vested in the city or town; so that there was a public use as well as a public service, for which that power was delegated. The exercise of the right of eminent domain, for the same object, was delegated to the city of Boston, by the St. of 1857, c. 225, § 1, and to all other cities and towns by the St. of 1869, c. 111.

In the statutes for the improvement of meadows, the provisions for the assessment and collection of the expenses, in form, resemble taxation, and the power exercised over private property is sometimes ascribed to the right of eminent domain. Talbot v. Hudson, 16 Gray, 417, 428. But there is no taking for public

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