French v. Kirkland

1 Paige Ch. 118

• Court: New York Court of Chancery
• Decided: June 19, 1828
• Status: Published

Opinion

The Chancellor :—It is contended on the part of the complainants, that the act of 1816, being for the benefit of the individual proprietors of the lands in the marsh, must be *construed strictly; and that in so construing it, the defendants have no right to interfere with the waters of Black Creek. On looking at the localities of the marsh and creeks, on the map which has been considered by both parties on the argument as correct, I am satisfied the defendants are proceeding to drain the marsh in the manner contemplated by the act of 1816, and are not exceeding the powers granted by that act. At the time the act was passed, they could have drained the marsh in the manner they are now endeavoring to do, without injuring the property of the complainants or other owners of mill privileges on the stream below. Since that time, however, the greater portion of the waters of the Chitteningo Creek have been diverted by the commissioners of the state for the purpose of supplying the canal. The owners of the marsh having a vested right to drain their lands in this manner, previous to the passing of the canal law, it may well be doubted whether the complainant’s remedy for any damage they may now sustain in consequence of the exercise of this right, is not against the state instead of the owners of the lands drained. But, if otherwise, the act of 1816 has given them a full and perfect remedy. In giving a construction to that act, it may be necessary to refer to the previous law which existed in relation to the Great Marsh.

On the 4th of April, 1806, an act was passed, authorizing the draining of this marsh, the first section of which act was substantially the same as that of 1816. The second section made it the duty of the surveyor-general to ascertain the practicability of draining, and to direct the manner of doing it. The third section provided for the appointment of commissioners of assessment, to apportion the expenses of the draining among the proprietors in proportion to the benefit by them respectively received; and any real or personal estate belonging to each proprietor was made liable to be sold for the payment of his share of the expense. The fourth section provided for the assessment of damages to other persons, and gave a similar remedy for the collection of the amount from the proprietors. The act of 1816 changed the mode of payment, both as to the damages and the expenses. Instead *of the individual and personal responsibility of the proprietors, their lands alone are made liable for the payment. In the case of expenses, however, the restriction has gone still further; and the amount chargeable upon the land of each proprietor can in no instance exceed two dollars per acre. But in relation to the damages, no such limitation is provided. The fifth section of the act of 1816 is copied from the act of 1806; and the principle of assessment there intended, means the principle of apportioning the amount of damages among the proprietors in reference to the benefit received by each. The legislature never could have intended to limit the damages to be paid to third persons in consequence of the acts of the proprietors, to two dollars per acre.

It was reasonable, as the proprietors acted by a majority, that the rights of the few should be protected against the acts of the many, by a proper limitation. But such limitation would be unreasonable in relation to the damages done to third persons, for the joint benefit of the proprietors. If any doubt exists as to the intention of the legislature, it is the duty of the court, in construing their acts, to presume they did not intend to take away individual or private property without just compensation to the owners. The complainants have, therefore, a legal and adequate tribunal to ascertain, collect and pay any damages they may sustain by reason of the draining of the marsh; and.the motion for an injunction is refused with costs.