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C. E. & 1. G. Otis, for respondent, Merchauts' Nat. disregarded without affecting the result. The plaintBank, of St. Paul.
iff was entitled to recover, uuless the defendant is to A. B. Matthews and Cole & Bramhall, for appellant,
be deemed as having taken the uotes unaffected with Peter Hanson.
notice of the plaintiff's rights. The court declared the
indorsements sufficient to charge the defendant with DICKINSON, J. Ono Luce was doing business in
notice of whatever jnterest the Merchants' National dividually under the name of “ The Bank of Brecken
Bank had in the notes, and refused to submit the quesridge.” He had several notes payable to himself by
tion of the defeudaut’s bona fides to the jury. Whether name, or by the name of “The Bank of Breckenridge.”
this was error is the only remaining question to be conHe indorsed these notes, “Pay G. C. Power, or order,
sidered for account and credit Bank of Breckenridge.
It is well established that negligence on the part of. [Signed]
E. E. LUCE,”
an indorsee of negotiable paper, for value and before and sent them to tho plaintiff bank with a letter re
maturity, respecting infirmities in the paper or the questing the latter to discount them, and place the
title to it, will not defeat the title of the purchaser or proceeds to his credit. The plaintiff retained the notes
his right of recovery, unless the circumslances are crediting the Bank of Breckenridge with their amount,
such as to convict bim of mala fides. Goodman v. Harless interest to the time of maturity, and advised Luce vey, 4 Adol. & E. 870; Goodman v. Simonds, 20 How. of their action. The sum so credited was afterward
343; Freeman's Nat. Bank v. Savery, 127 Mass. 75, 79; paid. Before the maturity of the notes the plaintiff
Magee v. Badger, 31 N. Y. 247; Hamilton v. Vought, 34 sent the notes to the Bank of Breckenridge for collec N. J. L. 187. tion, having indorsed them as follows: “Pay Bank
We are of the opinion that the case conclusively of Breckenridge, or order, for collection, account of
shows the defendant to have acquired the potes, not Merchants' National Bank, St. Paul.
merely negligently, but in bad faith. The indorseF. A. SEYMOUR, Cashier.”
ments to the Bank of Breckenridge “for collection, Luce receiving the notes, transferred them by in account of Merchants’ National Bank, St. Paul," upon dorsement before their maturity, with the indorse their face indicated that the latter bank had, or at ments uncancelled upon them, to the defendant in least claimed to have, the title to the notes, and that payment of a precedent debt. The defendant noticed the Bank of Breckenridge (Luce) was its agent, with the indorsements when ho received the notes, but authority merely to collect. Rock Co Bank v. Hollisasked no questions, and appears to have had no notice ter, 21 Mimi. 385; National Banlc v. Clarke, 23 id. 263. of the plaintiff's rights respecting the notes, except as This assertion of title, as borne upon the notes themit is to be in ferred from what has been stated. The
selves, was so placed as to show that it was presumdefendant having refused to restore the notes to the ably the last indorsement made. It is true, the prior plaintiff, this action is prosecuted to recover their indorsement by the payee to Power, being restrictive, value.
did not show that the payee had parted with his title; In First Nat. Bank of Rochester v. Pierson, 24 Minn. but it was not necessary that the payee should have 140, this court decided that National banky were not indorsed the notes in order to transfer his title. Pease authorized to purchase promissory notes, in the ordi v. Rush, 2 Minn. 107 (Gil. 89); Foster v. Berkey, 8 Mind. pary sense of the word “purchase,” the transaction 351 (Gil. 310); Cassidy v. First National Bank, 30 Minn. not being a discounting of the paper, or a lending of 86. money upon the credit of it; and the defense of ultra
If Luce had presented to the defendant notes not vires was sustained in an action upon a note so pur thus indorsed, and had stated to him that a St. Paul cbased. Since that decision was rendered the act of
bank claimed to own the notes, and had assumed to Congress upon which it was based has come before the
constitute him, Luce, its agent, to collect them, a purSupreme Court of the United States for construction cbase ol the property from Luce without further exNational Bank v. Matthews, 98 U.S. 621; National Bank planation, and without inquiry would, if unaffected v. Ihitney, 103 id. 99. The decisions of that court are by other circumstances, be palpably inconsistent with to the effect that the enforcement in favor of a bank good faith. The case before us not less conclusively of securities upon real property, which securities charges the defendant with mala fides. Luce assum. the bauk had acquired without authority, could ing to transfer the notes in payment of his own prenot be opposed by the plea of ultra vires, but existing debt, presented them to the defendant bearthat it was intended by Congress that the con ing indorsements, uncancelled and unexplained, which sequences of such violations of law should be only upon their face indicated that Luce had no right to such as might bo imposed in proceedings insti dispose of the property, but that it belonged to tuted against the bank by the government. This another. Such was the unmistakable import of the construction of the law of Congress is authoritative, indorsements. It was not to be presumed that the inand it is our duty to follow it. In doing so we neces dorsements had been wrongfully or surreptitiously sarily overrulo Bank v. Pierson, supru, as to the effect placed upon the notes. It was an extraordinary cirof the plea of ultra vires in such cases.
cumstance that Luce, if he was the owner of the paper Applying the principle established by theso decis. should, when assuming to dispose of it as his own, sufions to tho caso before us, it is not material whether for such indorsements, impugning his own title, to rethe transaction through which the plaintiff acquired main upon the paper unexplained. The defendant the notes was a purchase of the notes in the ordinary noticed the indorsements, but asked no questions. He sense of the word “purchase,” or a discount of the testified in his own behalf, but no explanation or fact notes as a loan to the payee. In either case the plaint- is presented going to oppose the conclusion which iff's right as against this defendant would be the same. should be drawn from the circumstances which we That the plaintiff acquired the notes either as its ab have stated. solute property or as security is conclusively shown by The defendant's purpose in acquiring the notes from the evidence. The defendant claims that the case Luce was, of course, to make collection from the shows a simple purchase of the notes by the plaintiff. maker for his own benefit. Having express notice by This may be conceded for the purposes of the case. the indorsements that Luce probably did not own the The special verdict of the jury, to the effect that the property, but that this plaintiff was the owner, he plaintiff discounted the notes for the benefit of the could not willfully disregard the apparent rights of the Bank of Breckenridge, is not inconsistent with their plaintiff, and by carefully abstaining from such ingeveral verdict in favor of the plaintiff, and may be quiry as the circumstances suggested, assert the right
to defeat plaintiff's title under the claim of being an indorsee in good faith. His conduot in disregarding the notice, and forbearing to make inquiries, is inexplicable except upon the assumption that he was regardless of the plaintiff's apparent rights, and willfully abstained from inquiry lest it should confirm the fact of which the indorsements notified him, and he should thus be unable to so acquire the notes that he might proteot himself against the plaintiff's superior right. This was not merely negligence concerning his own interests or the rights of others, but mala fides. The proof of such mala fides resting in the circumstances detailed is unopposed by any fact going to support a contrary conclusion, and the court did not err in determining the matter as a conclusion of the law. Jones v. Gordon, L. R., 2 App. Cas. 616; 20 Moak Eng. 127; National Security Bunk v. McDonald, 127 Mass. 82; National Bunk of Com. v. Law, 127 id. 52; Fowler v. Brantly, 14 Pet. 318.
The order deuying a new trial is affirmed.
sonably held that the maker was simply expressing his inducement to make it, howeverinaccurate the language may be for that purpose if strictly construed; and unless the words clearly show that it was intended to be temporary or contingent it will be upheld. In this instance if the testator, by the words he used, referred to the possibility of his accidentally dying from home as a reason for making the will, then it must be maintained; but if he intended by them to show that he was then making only a temporary or conditional disposition of his property it must fail, because the event named never happened.
An unexpressed intention, however strongly we may suppose it to have existed, cannot be enforced; but upon the other baud, a will cannot be allowed to fail upon slight indications that the testator intended it to be conditional. The end however to be assiduously sought is the intention of the testator; and all rules must bo subordinated to it.
A brief reriow of adjudged cases may also serve to bring us to a proper conclusion, although each case involving the construction of an instrument must necessarily depend upon the particular language used; and we havo been unablo to find any exactly similar
KENTUCKY COURT OF APPEALS, FEB. 28, 1885.
LIKEFIELD V. LIKEFIELD. A testator made his will, in which he provided that “if any
accident happen to me that I die froin home, my wife shall have every thing." He died at liome many years afterward, having preserved the will, and read it within a year of his death. Téld, that his dying away from homo was not a condition precedent. and that the wifo was entitled to the estate under it.
PPEAL from Jefferson Conmou Pleas Court. A
Woollcy & Buckner and 0. 1. Wehle, for appellants. Elliott & Ilemingray, for appellee.
HOLT, J. A paper wholly written by William A. Likefield, and worded as follows, is in question as his last will by this appeal, after having been probated as such by the Jefferson County ('ourt, and its judgment sustained by the Jefferson ('ourt of ('ommon Pleas:
LOUISVILLE, Jan. 14, 1859. “If any accident should happen to me that I dio from home, my wife, Julia Ann Likefield, shall hare every thing I possess, the houso and lots and the money that is duo to me, and for her to hold it as her
In Parsons v. Lanoe, 1 Ves. Sr., 190, the words, “ If I die before my return from my journey to Ireland,” etc., were held to constitute a contingent will, and an inoperative one, because the maker returned home.
“In case I die before I join my beloved wife," eto., shared a liko fate. Sinclair v. Ilone, 6 Ves. Jr. 607.
In Todd's Will, 2 W. & S. 145, tho testator had in view a certain journey,and the language used was: “My wish, desire and intention now is that if I should not return,” etc.; and the will was held to be conditional. Also in lassie v. Griffin, 2 Met. (Ky.) 364, where the will was mado whilo the testator was on a visit in Missouri, and ho willed the notes and accounts he held on his brothers to them in caso he never returned. Also in The Goods of Robinson, L. R., 2 P. & D., 171, wbero the words were: “In caso anything should happen to me during the remainder of the voyage from hence to Sicily and back to London, that I give and bequeath," eto.
In Jarwell v. Jaxwell, 3 Met. (Ky.) 101, the words were: “If I never get back home I leave you every thing I have in the world.” In this caso the testator was away from home when tho will was made; he had just escaped from a steamboat disaster; the navigation was peculiarly dangerous at the time, and tho necessary continuation of his journey homeward continucd tho danger; and it was plain from the entire instrument (a letter) that it was intended to be operativo only during his absenco upon that occasion.
In Dougherty v. Dougherty, 4 Met. (Ky.) 25, tho language was: “As I intend starting in a few days to the State of Missouri, and should any thing happen that I should not return alive, my wish is,” etc.
It will be noticed in all the above cases and in others not now at hand, where the will has been held to be conditional, that a specific contingency is named, and is either confined to a timo certain or a particular event.
In this respect they are clearly distinguishable from the case now presented. The will in this instance fixes no limit or time, as during a particular journey, or for a particular length of timo. No specific time or particular event is named. It refers to 10 particular expected calamity, and the words are general in their character; and this fact leads to the conclusion that the testator, who was evidently not an educated man or an adept iv writing such instruments, did not intend the disposition of his estate to depend upon whether he died at or away from his home.
“ Wm. A. LIKEFIELD.” Ho died at homo on March 28, 1881, leaving the appellee as his widow, but no children, they having previously died. The testimony shows that the decedent, about the date of the abovo writing, occasionally mado steamboat trips upon the Ohio river as a watchman; that he and the appellee lived happily together as husband and wife for over thirty years; that he kept the paper in contest in a small tin box; that in the latter part of the year before his death, and in the presence of his wife, he examined his papers, including it; and after reading it over replaced it in the box and directed her to take care of it.
His brother and sisters and the children of a deceased brother now contend that it was a contingent will, and never became effective, as he died at home; that the words “ If any accident should happen to mo tbat I die from homo" constitute a condition; whilo upon the other hand the widow urges that they wero only used to give a reason for making the will.
A few general observations may aid in the solution of the question. The rule is that courts will not incline to regard a will as conditioual if it can be rea
It would have been an absurd condition; and while N error to the Supreme Court of the State of New it is true that he had a right, if he chose to impose it, Hampshire. The opinion states the case. yet whether it 18 reasonable in its character can properly be considered when it is a question whether the
C. R. Morrison, for plaintiff in error. words were used as a mere reason for executing the George F. Hoar and B. Wadleigh, for defendant in paper or as a condition upon which it was to become error. operative.
GRAY, J. This was a writ of error to reverse a judg. It is quite natural for a person to give some reason ment of the Supreme Court of the State of New Hampfor making a will; and as has been well said, a
sbire against the plaintiff in error, upon a petition and literal interpretation may very easily carry us wide filed by the defendant in error (a corporation estabof the intention."
lished by the laws of New Hampshire for the manu. Swinburne says: “Albeit the testator make his tes facture of cotton, woolen, iron and other materials) for tament by reason of some great journey, yet it is not the assessment of damages for the flowing of his land revoked by the return of the testator."
by its mill-dam at Amoskeag Falls, on the Merrimack Where the words “Lest I should die before the next river, under the general mill act of that State of 1868, eun, I make,” etc., were used in a will written eight ch. 20. een years before the testator's death, it was upheld. In the petition filed in the State court the Amoskeag Burlon v. Collingwood, 4 Hagg. Eccles. 176.
Manufacturing Company alleged that it had been auSo “In case I should die on my travels, etc., al thorized by its charter to purchase and hold real esthough the testator returned home, it being shown tate, and to erect thereon such dams, canals, mills, that he recognized the paper as his will shortly before buildings, machines and works as it might deem nechis (leath. Strauss v. Schmidt, 3 Phill. 209.
essary or useful in carrying on its manufactures and In Re Tylılen, 18 Jur. 136, the language of the will business; that it had purchased the land on both sides
If it please Almighty God to call me suddenly of the Merrimack river at Amoskeag Falls, including from this mortal life, and during my absence from the river and falls, and had there built mills, dug home, I leave," etc.; and it was sustained, although canals, and established works, at a cost of several mil. the testator died at home.
lions of dollars, and for the purpose of making the So in Re Dobson, L. R. 1 P. & D., 88, where the whole power of the river at the falls available for the words were: “In case of any fatal accident happening use of those mills, had constructed a dam across the to me, being about to travel by railway, I hereby river; that the construction of the mills and dam, to leave," etc. Also in Thorne's case, 4 Sw. & Tr., 4:36, the raise the water for working tbe mills, for creating a language being: “I request that in the event of my reservoir of water, and for equalizing its flow, was of death while serving in this horrid climate, or any ac public use and benefit to the people of the State, and cident happening to me, I bequeath," etc.
necessary for the use of the mills for which it was deIn the case of Bruilford's 10m x v. Bradford, ctc., 81 signed; and that Ilead, the owner of a tract of land Ky., the language of the will was of a more conditional described in tho petition, and bounded by the river, character than in this instance, to wit. : “Being in the claimed damages for the overflowing thereof by the full possession of all my mental faculties, but in feeble dam, which the corporation had been unable satisfachealth, and about to start on a long journey, and sub torily to adjust; and prayed that it might be deterject to the common casualties of others, I deem it pru mined whether the construction of the mills and dam, dent to provide for the disposition of my property in and the flowing, if any, of Head's land to the depth case I should not return;" and it was held that it was and extent that it might or could be flowed thereby, not contingent, and although the testator returned were or might be of public use or benefit to the people home and lived for several days thereafter, yet it was of the State, and whether they were necessary for the sustained.
mills, and that damages, past or future, to the land by It is shown in this case that the testator carefully the construction of the dam might be assessed accord. preserved the paper in contest; that he examined it ing to the statute. the year prior to his death; and while these facts can At successivo stages of the proceedings, by denot constitute a statutory republication of it, yet they murrer, by request to the court after the introduction illustrate the intention of the maker of the instrument, of the evidenco upon a trial by jury, and by motion in as they tend to show that he believed he had disposed arrest of judgment, Ilead objected that the statute of his property by it; and while the word “if” is an was unconstitutional, and that the petition could not apt one to express a condition, yet the language used is be maintained, because they contemplated the taking 80 general ir its character that it shows the testator in of his property for private use, in violation of the fourtended it as words of inducement to the making of the teenth amendment of the Constitution of the United will only, and not that the disposition of his property States, which declares that no State shall deprive any should dopend merely upon the place of his death. person of property without due process of law, por
Judgment (uffirmed. deny to any person within its jurisdiction the equal
protection of the laws; as well as in violation of the
('onstitution of the State, the bill of rights of which CONSTITUTIONAL LII DEPRIATION OF declares that all men have certain natural, essential PROPERTY-STITE STATUTE-OVER
and inherent rights, among which are the acquiring, FLOWZVG LIIS.
possessing and protecting property, and that every
member of the community has a right to be protected SUPREME COURT OF TIIE UNITED STATES,
in the onjoyment of his property. His objections JANUARY 5, 1885,
were overruled by tho highest court of New HampHEAI) V. AMOSKEAG MANUFG ('o.*
shire, and final judgment was entered adjudging that A statute of a State authorizing any person to crect
the facts alleged in the petition were true, and that and maintain on his own land a water-mill and upon payment or tender of the damages assessed by mill-dam upon and across any stream not navigable, pay the verdict, with interest, and fifty per cent added, ing to the owners of lands flowed damages assessed in a juilicial proceeding, does not deprive them of their prop
making in all the sum of $572.43, the company have the erty without due process of law, in violation of the four right to erect and maintain the dam, and to flow his teenth amendment of the Constitution of the l'nited
land forever to the depth and extent to which it might States.
or could be flowod or injured thereby. 56 N. H. 386, *S. C., 5 Sup. Ct. Rep. 4:11.
and 59 id. 332, 563.
Tho position that the plaintiff in error has been de States are not so limited, either in terms or in the usnied the equal protection of the laws was not insisted age under them. In Massachusetts for more than half upon at the argument. The single question presented a century the mill acts have been extended to mills for for decision is whether he has been deprived of his any manufacturing purpose. Mass. St. 1824, ch. 153; property without due process of law, in violation of Wolcott Woolen Janufacturing ('0. v. Upham, 5 Pick. the fourteenth aniendment of the Constitution of the 202; Pulmer Co. v. Ferrill, 17 id. 58, 65. And throughUnited States. It is only as bearing upon that ques out New England, as well as in Pennsylvania, Virtion that this court, upon a writ of error to a State ginia, North ('arolina, Kentucky, and many of the court, has jurisdiction to considor whether the statute western States, the statutes are equally comprehenconforms to the Constitution of the State. The char- sire. ter of the Amoskeag Manufacturing Company, which It has been held in many cases of high authority authorized it to erect and maintain its mills and dam, that special acts of incorporation, granted by the Leggare it no right to flow the lands of others. Kusiman
islature for the establishment of dams to increase and v. Amoskeug Janufacturing ('0., 44 N. II. 113. The improve the water-power of rivers and navigable proceedings in the State court were had under the waters, for mechanical and manufacturing purposes, general mill act of New Hampshire, which enacts that
are for a public use. Scudder v. Trenton Delaware any person or any corporation authorized by its char
Falls Co., Saxt. 694, 7:28, 729; Boston & R. Jill Corp. ter so to do may erect or maintain on his or its own
v. Neuman, 12 Pick. 467; Ilazen v. Essex Co., 12 ('ush. land a water-mill aud mill-dam upon any stream not 475; Com. v. Esseir ('0., 13 Gray, 239, 251, 252; Nannavigable, paying to the owners of lands flowed the kins v. Lawrence, 8 Blackf. 260; Great Falls Januf g damages which, upon a petition filed in court by either Co. v. Fernald, 47 N. II. 411. In somo of those cases party, may be assessed by a committee or by a jury for the authority conferred by general mill acts upon any the flowing of the lands to the depth and extent to
owner of lanıl upon a stream to erect and maintain a which they may or can bo flowed by the dam. N. II.
mill on his own land and to flow the land of others, St. 1868, ch. 20.
for manufacturing purposes, has been considered as The plaintiff in error contends that his property has resting on the right of eminent domain, by reason of been taken by the State of New Ilampshire for private
the advantages inuring to the public from the improveuse, and that any taking of privato property for pri
ment of water-power and the promotion of manuvato use is without due process of law.
factures. Seo also Isolyoke ('o. v. Lyman, 15 Wall. Tho defendant in error contends that the raising of 500, 506, 507; Beckman r. Suratoga & S. R. ('0., 3 Paige, a water-power pon a running stream for manufac- 45, 73; Talbot v. IIuilson, 16 Gray, 417, 4:26. And the turing purposes is a public ise; that the statute is a
validity of general mill acts, when directly controconstitutional regulation of the rights of riparian verted, has often been upheld upon that ground, conowuers, and that the remedy given by the statute is
firmed by long usago or prior decisions. Jordan V. due process of law. General mill acts exist in a great Woodward, 40 Me. 317; Olmstead v. Camp, 33 ("onn. majority of the States of the Union. Such acts, an
532; Todil v. Austin, 34 id. 78; l'enard v. Cross, 8. thorizing lands to be taken or flowed in invitum, for
Kan. 213; Harding v. Funk, id. 315; Willer v. Troost, the erection and maintenance of mills, existed in Vir- 14 Mim. 36.3 (Gil. 28.2); Newcomb v. Smith, 1 (hand. 71 ginia, Maryland, Delaware and North ('arolina, as well 1 (2 Pin. 131); Fisher v. lloricon Co., 10 Wis. 351; Babb as in Massachusetts, New Ilampshire, and Rhodo v. Juckey, id. 371; Burnham v. Thompson, 35 Iowa, Island, before the declaration of independence; and 421. exist at this day in each of these States, except Vary
In New Hampshire, from which the present caso land, where they;were repealed in 1832. One passed iu North ('arolina in 1777 has remained upon the stat
comes, the Legislature of the province in 1718 passed
an act (for the most part copied from the Massachuute book of Tennessee. They were enacted in Maine,
setts act of 1714) authorizing the owners of mills to Kentucky, Missouri and Arkansas soon after their ad
flow lands of others, paying damages assessed by a mission into the Cnion. They were passed in Indi:
jury. The act of 1719 continued in force until the ana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, | adoption of the Constitution of the State in 1784, and Minnesota, Mississippi, Alabama and Florida while
afterward until June 20, 1792, and was then repealed, they were yet Territories, and re-enacted after they became States. They were also enacted in Pennsylva- the Staie Constitution of 1792 took effect. The pro
upon a general revision of the statutes, shortly before nia in 1803, in ('onnecticut in 1861, and more recently in Vermont, Kansas, Oregon, West Virginia and Geor
visions of the bill of rights, on which the plaintiff in
error relied in the court below, were exactly alike in gia, but were afterward repealed in Georgia.
the two ('onstitutions. Special acts, authorizing the [Omitting references to State statutes.]
flowing of lands upon the payment of damages, were In most of those states their validity has been assumed without dispute, and they were never adjudged passed afterward from time to time; among others, to be invalid anywhere until since 1870, and then in
the statute of July 8, 1862, authorizing the Great Falls three States only, and for incompatibility with their
Manufacturing ('ompany to erect a dam upon Salmon
Falls river, which was adjudged by the Supreme Judirespective ('onstitutions. Loughbrülye v. Harris, 12
cial ('ourt of New Hampshire in 1867, in an opinion deGa. 500; Tyler v. Brucher, 14 Vt. 618; S. (., $ Am. Rep. 398; Ryerson F. Brown, 35 Mich. 3:33; S. (., 1
livered by Chief Justico Perley, to be consistent with
the ('onstitution of that State, because the taking auAm. Rep. 561. The earlier cases in Tennessee, Ali
thorized was for a public use. Great Fulls Manufay bama and New York containing olivtu to the same effect, were decided upon other grounds. Harding v. Gooil
Co. v. Fernald, 17 N. 11. 414. The statute now in queslett, 3 Yery. 11; Jemphis ('ity R. ('0. v. llemphis, 4
tion, the first general mill act passed by the Legislature Cold. 106; Jornv. Wright, 31 Ala. 311, 333; Bottoms
of the State, was passed and took effect on July 3, v. Brewer, 51 id. 288; Ilay v. Connes ('0., i Barb. 42, 47,
1868; was held in 1sh v. ('ummings, 50 N. II. 591, after and ? N. Y. 159. Tho principal objects no doubt of
elaborate argument against it, to be constitutional, the earlier acts were grist-mills, and it has been gener
upon the ground of the decision in Great Falls dianut o ally admittod, even by those courts which have enter
Co. v. Fernald, and was enforced without question in tained the most restricted view of the legislative
Pollard v. Moore, 51 N. II. 188, and in Town v. Faulkpower, that a grist-mill which grinds for all comers at
ner, 56 id. 255. In the case at bar, and in another case tolls fixed by law is for public use. Seo also Blair v.
since, the Stato ovurt held its constitutionality to be Cuming Co., 111 U. S. 363. But the statutes of many
settled by tbe former decisions. Amoskcag Manus g
Co. v. Head, 56 N. H. 386, and 59 id. 332, 563; Same y. proportion to the benefits received, have been often Worcester, 60 id.522.
upheld, independently of any effect upon the public The question whether the erection and maintenance | health, as reasonable regulations for the general adof mills for manufacturing purposes under a general vantage of those who are treated for this purpose as mill act, of which any owner of land upon a stream not owners of a common property. Coomes v. Burt, 22 navigable may avail himself at will, can be upheld as a Pick. 422; Wright v. Boston, S Cush. 233, 241; Sherman taking, by delegation of the right of eminent domain, v. Tobey, 3 Allen, 7; Lowell v. Boston, 111 Mass. 454, of private property for public use, in the constitutional | 469; French v. Kirkland, 1 Paige, 117; People v. Brooksenso, is so important and far reaching, that it does lyn, 4 N. Y. 419, 438; Coster v. Tide-Water Co., 3 C. E. not become this court to express an opinion upon it, Green, 54, 68, 518, 531; O'Reilly v. Kankakee Valley when not required for the determination of the rights of Draining Co., 32 Ind. 169. the parties before it. We prefer to rest the decision of By the maritime law, based, as Lord Tenterden obthis case upon the ground that such a statute, consid-served, on the consideration that the actual employered as regulating the manner in which the rights of ment of ships is “a matter, not merely of private adproprietors of lands adjacent to a stream may be as. vantage to the owners, but of public benefit to the serted and enjoyed, with a due regard to the interests State," and recognized in the decisions and the rules of all, and to the public good, is within the constitu of this court, courts of admiralty may, when the part tional power of the Legislature. When property in owners of a ship cannot agree upon her employment, which several persons have a common interest cannot authorize the majority to send her to sea, on giving be fully and beneficially enjoyed in its existing condi- security to the dissenting minority to bring back and tion, the law often provides a way in which they may restore the ship, or if she be lost to pay them the value compel one another to submit to measures necessary of their shares; and in such case the minority can to secure his beneficial enjoyment, making equitable neither recover part of the profits of the voyage nor compensation to any whose control of or interest in compensation for the use of the ship. Abb. Shipp., pt. the property is thereby modified.
1, ch. 3, $S 2, 3; The Orleans, 11 Pet. 175, 183; Rule 20, In the familiar case of land held by several tenants in admiralty, 3 How. 7; The Marengo, 1 Low. 52. If in common, or even by joint tenants with right of sur the part owņers are equally divided :in opinion upon vivorship, any one of them may compel a partition, the manner of employing the ship, then according to upon which the court, if the land caunot be equally the general maritime law, recognized and applied by divided, will order owelty to be paid, or in many Mr. Justice Washington, the ship may be ordered to States, under statutes the constitutionality of which be sold and the proceeds distributed among them. has never been denied, will, if the estate is such that The Seneca, 18 Am. Jur. 486; S. C., 3 Wall., Jr., 395. it cannot be divided, either set it off to one and order See also Story Partn., § 439; The Nelly Schneider, 3 him to compensate the others in money, or else order Prob. Div. 152; S. C., 32 Moak Eng. 76. the whole estato to be sold. King v. Reed, 11 Gray, But none of the cases thus put by way of illustra490; Bentley v. Long Dock Co., 1 McCart. 480; S. C., tion so strongly call for the interposition of the law as on appeal, nom. Manners v. Bentley, 2 id. 501; Jead y. the case before us. Alitchell, 17 N. Y. 210; Richardson v. Jonson, 23 Comu. The right to the use of running water is publici juris, 94. Water rights held in common, incapable of parti-and-common to all the proprietors of the bed and tion at law, may be the subject of partition in equity, banks of the stream from its source to its outlet. Each either by apportioning the time and extent of use, or has a right to the reasonable use of the water as it by a sale of tho right and a division of the proceeds. flows past his land, not interfering with a like reason. Smith v. Smith, 10 Paige, 470; Dell’ilt v. llarvey, 4ablo use by those above or below him. One reasonable Gray, 486; UcGillivray v. Eruns, 27 Cal. 92.
use of the water is the use of the power inherent in At the common law, as Lord Coke tells us, “if two tho fall of the stream and the force of the current to tenants in common, or joint tenants, be of an house drive mills. That power cannot be used without damor mill, and it fall in decay, and the one is willing to ming up the water, and thereby causing it to flow repair tho same, and the other will not, he that is will back. If the water thus dammed up by one riparian ing shall h:10 a writ de reparatione facienda; and the proprietor spread over the lands of others, they could writ saith, ad reparationem et sustentulionem ejusdem at common law bring successive actions against him domus teneantur; whereby it appeareth that owners for the injury so done them, or even have the dam are in that caso bound pro bono publico to maintain abated. Before the mill act therefore it was often imhouses and mills which are for habitation and use of possible for a riparian proprietor to use the waterCo. Litt. 200 b); 4 Kent Comm. 370.
power at all without the consent of those above him. In the same spirit the statutes of Massachusetts for the purposo of these statutes is to enable any riparian 175 years have provided that any tenant in common of proprietor to erect a mill and use the water-power of a mill in need of repair may notify a general meeting the stream, provided he does not interfere with an of all the owners for consultation, and that if any one earlier exercise by another of a like right, or with any refuses to attend, or to agree with the majority, or to right, of the public; and to substitute, for the compay his share, the majority may cause the repairs to be mon-law remedies of repeated actions for damages and made, and recover bis share of the expenses out of the prostration of the dam, a new form of remedy, by mill or its profits or earnings. Mass. Prov. St. 1709, which any one wbose land is flowed can have assessed, ch. 3, 1 Prov. Laws (Stato ed.), 641, and Anc. Chart. once for all, either in a gross sum or by way of annual 388; St. 1795, ch. 74, SS 5-7; Rov. St. 1836, ch. 116, SS damages, adequate compensation for the injury. 44-58; Gen. St. 1860, ch. 149, SS 53-64; Pub. St. 1882, ch. This view of the principle upon which general mill 190, SS 59-70. And the statutes of New Ilampshire for acts rest has been fully and clearly expounded in the more than eighty years have mado provisions for com judgments delivered by Chief Justice Shaw in the Supelling the repair of mills in such cases. Roberts v. preme Judicial Court of Massachusetts. Peavey, 7 Fost. 477, 403.
In delivering the opinion of the court in a case deciThe statutes which have long existed in many States ded in 1832 he said: “The statute of 1796 is but a reauthorizing the majority of the owners in severalty of vision of a former law, and the origin of these regulaadjacent meadow or swamp lands to have commission tions is to be found in the provincial statute of 1714. ers appointed to drain and improve the whole tract by They are somewhat at variance with that absolute cutting ditches or otherwise, and to assess and levy right of dominion and enjoyment which every proprithe amount of the expense upou all tho proprietors in etor is supposed by law to have iu his own soil; and in