unconstitutional and void.1 Thus the erection of a dam across a navigable water by an individual, under the authority of a statute of New Jersey, providing no remedy to the owner of a meadow overflowed by means of the dam, was held to be an injury for which the owner had his action for damages. And so, if the legislature should authorize a public improvement by means of a canal, and the execution of the work would require or produce the destruction of, or diminution of, the value of private property, without affording at the same time means of relief and indemnification, the owner of the property destroyed or injured may have his action at Common Law, against those who caused the damage. An act authorizing one to build a dam on his own land upon a river which is a highway, merely protects him from an indictment for a nuisance; and if, in doing this, he overflows his neighbor's land, he is liable to an action therefor. So strictly is the rule adhered to, that if an attempt is made under a statute to take such property, without such an indemnity, a Court of Chancery will interfere by injunction. The trustees of a village, in the State of New York, had been empowered, by an act of the legislature, to supply it with water by means of conduits; and for this purpose it was provided that they might enter on lands of individuals, to make reservoirs and lay conduits, and provided compensation only for the owners of the land on the spring, from which the water 1 Thatcher v. Dartmouth Bridge Co., 18 Pick. (Mass.) R. 501; and see also Perry v. Wilson, 7 Mass. R. 393. 2 Sinnickson v. Jackson, 4 Harr, (N. J.) R. 129. 3 Stevens v. Prop'rs of Middlesex Canal, 12 Mass. R. 466. 4 Crittenden v. Wilson, 5 Cow. (N. Y.) R. 165. was to be conducted. It was held, that there being no provision made for indemnifying the owners of the land through which the water run, in its natural course, for the deprivation of the water, an injunction would lie to prevent any proceeding to divert the water from its natural course, until adequate provision was made for compensating the persons who would sustain loss by the diversion. Again, in the case of Jennings ex parte, the water of a certain river was diverted from a mill and other hydraulic works, the right to erect which was claimed under a legislative grant; and it was held, that the appraisers were bound to appraise damages to the owners of the works; and the appraisers having refused to act, on the ground that the property in the river was in the State, the Court directed that a mandamus should issue. 477. The Constitution of Mississippi is explicit as to the time when the compensation must be made, and requires that "the compensation shall be first made; and under that provision, it has been held, that payment is a condition precedent, and that such payment must precede the seizure for public use; and that any act which authorizes such seizure for public use, without providing such previous compensation is unconstitutional and void. The Constitution of New York, and that of other States, does not require that compensation shall be first made; but merely declares that 1 Gardner v. Newburgh, 2 Johns. (N. Y.) Ch. R. 162. 2 Jennings, ex parte, 6 Cow. (N. Y.) R. 518. 3 Thompson v. Grand Gulf Railroad Co., 3 How. (Mississ.) R. 240. The Civil Code of Louisiana has provided that there must be the previous indemnity (Civ. Cod. Louis. art. 489); and so did the Code Napoleon, (art. 545.) private property shall not be appropriated to public purposes without just compensation. In Rogers v. Bradshaw, in New York,' it was held, that where private property was taken for private use, it was not necessary that the amount of compensation should be actually ascertained and paid before such property was taken and appropriated to the public use; and both in that case, and that of Pittsburgh v. Scott, in Pennsylvania, it was held sufficient, if a certain and adequate remedy was provided by which the individual could obtain such compensation without unreasonable delay. When the case of Bloodgood v. Hudson and Mohawk Railroad Company first came before the Supreme Court of New York,3 that Court held, that the legislature might authorize a railroad company, by their agents, surveyors, and engineers, to enter upon the lands of an individual for the purpose of making a survey and examinations, so as to determine the most advantageous route for the proper line or course whereon to construct their road, previous to their acquiring a title to the lands required for that purpose, or the assessment and payment of damages. It is also held, that the company might enter upon the land in like manner, previous to acquiring title to the land, or having the damages appraised or paying the same. The purchase of the land, it was held, was a condition precedent to the vesting of the fee-simple, but not to the right to enter, and take possession and use the land for the purposes of a railroad. But when this case came under ' Rogers v. Bradshaw, 20 Johns. (N. Y.) R. 735. 2 Pittsburgh v. Scott, 1 Barr, (Penn.) R. 309. 3 Bloodgood v. Hudson and Mohawk Railroad Co., 14 Wend. (V. Y.) R. 51. review in the Court of Errors,1 that decision was overruled, and it was decided, that it was a condition precedent that the damages should be assessed and paid before the company had any right to enter upon, and actually appropriate the land for the purposes of a railroad. It was not to be presumed the legislature intended, or that it meant to authorize the company to enter upon the land of an individual, pull down his building and other erections, before assessment and payment for the same; or to leave the individual to seek an uncertain remedy by action. The citizen whose property is thus taken from him, is not bound to trust to the solvency of an individual, or even a corporation, for just compensation.2 1 18 Wend. (N. Y.) R. 17. 2 Chancellor Kent, in a copious note to the second volume of his Commentaries, after citing many authorities in regard to the right of eminent domain, proceeds to say, "The better opinion is, that the compensation, or offer of it must precede, or be concurrent with the seizure and entry upon private property under the authority of the State. The government is bound, in such cases, to provide some tribunal for the assessment of the compensation or indemnity, before which each party may meet and discuss their claims on equal terms; and if the government proceeds without taking these steps, their officers and agents may, and ought to be restrained by injunction." 2 Kent, Comm. 339, note. He further says, "The settled and fundamental doctrine is, that government has no right to take private property for public purposes, without giving a just compensation; and it seems to be necessarily implied, that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception concurrently in point of time, with the actual exercise of the right of eminent domain." It may be remarked that Chancellor Kent has not given the foregoing opinion in view of any constitution requiring, in direct terms, a previous indemnity, but in reference to constitutions containing nothing more than the general provision, that private property shall not be taken for public uses without full compensation being made, and in reference also to the universal principles of justice. But, as was said by Lord C. J. Denman, "frequently the amount of compensation cannot be ascertained till the work is done." Lisley v. Lobley, 7 Adol. & Ell. R. 124. For further authorities on this subject, see the note of Chancellor Kent above referred to. CHAPTER XII. STATUTES FOR THE ENCOURAGEMENT AND SUPPORT OF MILLS, BY AUTHORIZING THE OWNERS AND OCCUPANTS THEREOF TO OVERFLOW THE LAND OF OTHER PERSONS. 1. As founded on the Doctrine of Eminent Domain. 2. The Provisions of Statutes of different States. 3. Their Effect in abolishing the Common-Law Remedies. 4. The "Public Good," as the Basis of such Statutes, and their broad Provisions and Construction to this End. 5. Do not authorize the overflowing of existing Mills. 6. How and when the Land becomes condemned to be overflowed. 7. How a Mill once used becomes abandoned. 8. Claim for Damages waived by Parol. 9. Prescriptive Right to flow without Payment of Damages. 10. In Respect to Land overflowed which is under the Jurisdiction of another State, or of the United States. 11. Of the Complaint under the Statute of Massachusetts and the Proceedings following it. 12. Of the Complaint under the Statute of Maine and the Proceedings following it. 1. As founded on the Doctrine of Eminent Domain. § 478. THIS chapter is a protraction of the preceding one, or an additional illustration of the subject of the exercise of the high prerogative of sovereignty of encroaching upon the exclusive right, which every citizen has to use his possessions without the interference of any other person. The contents of the chapter preceding disclose, that if the public interest can in any way be promoted by taking private property, it in a great degree rests in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them |