Hinman, C. J.
On the report of the committee in this cause being presented to the Superior Court, that court, instead of talring any order upon it, reserved the questions arising upon it, and also the question what order or decree should, upon the facts contained in the report, be made in the cause, for the consideration and advice of this court. Upon the cause coming before us on this reservation we are asked to look back at a former decision of the Superior Court, made several terms before the report of the committee was made, denying the motion of the respondents for the removal of the cause for trial into the Circuit Court of the United Stales, then next to be held in and for the district of Connecticut ; and we are asked to do this upon the ground that the proceedings in the Superior Court subsequent to that mo* [510]*510tion, if the cause be one that the party had a right to remove into the Circuit Court, are all void.; as will be also the proceedings of this court if it entertains the cause. It may be true that such would be the result of proceeding with the cause, if it was one that the party had a right to remove to the Circuit Court. Still, we entertain no doubt that we ought not now to listen to a claim of this sort, whatever we might think of the propriety of the former decision of the Superior Court. It may be true that in a case clear of all doubt as to the right of the party to remove it, the court may and would in any stage of it, on discovering that it had no jurisdiction of the cause, refuse to entertain it further. But in a case which the Superior Court has once decided upon argument not to be removable, we think the only proper course is to consider only such questions as that court desired opr advice upon and leave all others to such future consideration as we may be called to give them in some more direct proceeding. It is to be remembered that the statute under which questions of law are reserved for the advice of the Supreme Court of Errors makes our advice, when properly asked for, binding upon the Superior Court. But when we assume to advise that court in respect to questions not regularly reserved, our advice may be regarded or not as to that court shall seem best, and if we are to pass upon the decisions of that court we prefer to do it on some regular motion or writ of error, which will render our decision binding, rather than to volunteer our advice upon the suggestion of counsel only. We have not therefore looked into the cases cited, or examined .very carefully the learned arguments of the respondents’ counsel on this subject.
In regard to the main question on the report of the committee, we fully assent to the suggestion of the respondents’ counsel, that the statute under which this proceeding is had, authorizing, as it does, the taking away from another of all beneficial use of his property in certain cases and depriving him it may be of some of his most cherished rights, and that for objects not always much more beneficial to the public than the purposes to which the land was devoted before it [511]*511was taken, ought to be strictly construed in favor of the owner of the land, and against the parties seeking to take it. The mill acts must now be regarded as constitutional; still, as they authorize the taking of property against the wishes of its owners, the latter have a right to demand a strict compliance with all the provisions of the acts before they are to be deemed to have, lost their property.
Under this idea, the respondents first claim that it does not sufficiently appear that the petitioners desire to erect a water mill to be operated by the water with which they propose to flow the respondents’ land. This desire is alleged in the petition, but it is said that the committee have not found it, because they find that although it is their desire to have-water mills set up on their lands, yet as their desire is rather to sell or léase the power thus obtained than themselves-, to occupy it, they do not bring their case within the statute». "We are of opinion however that a desire to have a watermill erected by another person under the petitioners’ lease or license is the same in effect as if they desired to erect it themselves. Indeed in a legal sense, it is a desire themselves to erect watermills, since what they cause to be done by others is in effect done by them. If there was any doubt as to the fact that water mills would be set up, or that others which are already erected and in operation would be more - successfully carried on, after obtaining the privilege of flow-age which the petitioners desire, the point might be worthy of more consideration. But when it appears from the maps. which the parties have caused to be made of these premises, for the purpose of reference on the argument of the ease, that the petitioners have already erected a dam and obtained a valuable water power thereby, which power they wish to increase by raising their dam to a greater height instead of' erecting entirely now works; and when it appears moreover, from the public maps of the county to which counsel have referred, that there are already one or more mills operated by.the water held by the dam as it now is, the question is involved in a technical nicety which we do not feel bound to regard.
[512]*512The statute provides “ that no such dam shall be erected to the injury of any mill lawfully existing, either above or below it on the same stream, or to the injury of a mill-site on the same stream on which a mill shall have been lawfully erected and used, unless, ” &c. Now the respondents own what are called the Baltic Cotton Mills, and between the lower or easterly end of the southerly side of the Baltic Cotton Mill race-way and the point in the river below down to which the respondents'own both banks of the river and the bed of it, there is some fall, not exceeding however two or two and a half feet, and the committee say that if this fall is to be deemed a part of that mill, or of its mill-site, then they find that any flow of the water above the point where the respondents own both banks and the bed of the stream will be an injury either to the Baltic mills, or to a mill-site of the respondents on which a mill and mill dam had been lawfully erected.
We are satisfied, under the construction which we have said should be given to this law, that this fall is a part of the Baltic mill-site within the meaning of the statute. A mill-site is the same as a mill privilege, which, in Gould v. Boston Duck Co., 13 Gray, 412, was said “ to embrace the right which the law gives the owner to erect a mill thereon, and to hold up or let out the water at the will of the occupant for the purpose of operating the samfe in a reasonable and beneficial manner.” It must of necessity include a reasonable amount of fall below the mill for the purpose of letting the water flow off without obstruction to the wheels, and we do not think it reasonable to confine the right of the mill owner to the exact amount of fall, to the fractional part of an inch, which will enable the water to flow away from his wheels without obstruction, especially where it appears that he has all along contemplated using his whole fall. The Spragues purchased their land under the bed of the river and on its banks, it may fairly be assumed, for the purpose of obtaining a valuable mill-site. They erected their mill, using "all their fall except two or three feet below their mill, which .they reserved for future [513]*513use when the demands of their business might render it useful to them.
Free access — add to your briefcase to read the full text and ask questions with AI
Hinman, C. J.
On the report of the committee in this cause being presented to the Superior Court, that court, instead of talring any order upon it, reserved the questions arising upon it, and also the question what order or decree should, upon the facts contained in the report, be made in the cause, for the consideration and advice of this court. Upon the cause coming before us on this reservation we are asked to look back at a former decision of the Superior Court, made several terms before the report of the committee was made, denying the motion of the respondents for the removal of the cause for trial into the Circuit Court of the United Stales, then next to be held in and for the district of Connecticut ; and we are asked to do this upon the ground that the proceedings in the Superior Court subsequent to that mo* [510]*510tion, if the cause be one that the party had a right to remove into the Circuit Court, are all void.; as will be also the proceedings of this court if it entertains the cause. It may be true that such would be the result of proceeding with the cause, if it was one that the party had a right to remove to the Circuit Court. Still, we entertain no doubt that we ought not now to listen to a claim of this sort, whatever we might think of the propriety of the former decision of the Superior Court. It may be true that in a case clear of all doubt as to the right of the party to remove it, the court may and would in any stage of it, on discovering that it had no jurisdiction of the cause, refuse to entertain it further. But in a case which the Superior Court has once decided upon argument not to be removable, we think the only proper course is to consider only such questions as that court desired opr advice upon and leave all others to such future consideration as we may be called to give them in some more direct proceeding. It is to be remembered that the statute under which questions of law are reserved for the advice of the Supreme Court of Errors makes our advice, when properly asked for, binding upon the Superior Court. But when we assume to advise that court in respect to questions not regularly reserved, our advice may be regarded or not as to that court shall seem best, and if we are to pass upon the decisions of that court we prefer to do it on some regular motion or writ of error, which will render our decision binding, rather than to volunteer our advice upon the suggestion of counsel only. We have not therefore looked into the cases cited, or examined .very carefully the learned arguments of the respondents’ counsel on this subject.
In regard to the main question on the report of the committee, we fully assent to the suggestion of the respondents’ counsel, that the statute under which this proceeding is had, authorizing, as it does, the taking away from another of all beneficial use of his property in certain cases and depriving him it may be of some of his most cherished rights, and that for objects not always much more beneficial to the public than the purposes to which the land was devoted before it [511]*511was taken, ought to be strictly construed in favor of the owner of the land, and against the parties seeking to take it. The mill acts must now be regarded as constitutional; still, as they authorize the taking of property against the wishes of its owners, the latter have a right to demand a strict compliance with all the provisions of the acts before they are to be deemed to have, lost their property.
Under this idea, the respondents first claim that it does not sufficiently appear that the petitioners desire to erect a water mill to be operated by the water with which they propose to flow the respondents’ land. This desire is alleged in the petition, but it is said that the committee have not found it, because they find that although it is their desire to have-water mills set up on their lands, yet as their desire is rather to sell or léase the power thus obtained than themselves-, to occupy it, they do not bring their case within the statute». "We are of opinion however that a desire to have a watermill erected by another person under the petitioners’ lease or license is the same in effect as if they desired to erect it themselves. Indeed in a legal sense, it is a desire themselves to erect watermills, since what they cause to be done by others is in effect done by them. If there was any doubt as to the fact that water mills would be set up, or that others which are already erected and in operation would be more - successfully carried on, after obtaining the privilege of flow-age which the petitioners desire, the point might be worthy of more consideration. But when it appears from the maps. which the parties have caused to be made of these premises, for the purpose of reference on the argument of the ease, that the petitioners have already erected a dam and obtained a valuable water power thereby, which power they wish to increase by raising their dam to a greater height instead of' erecting entirely now works; and when it appears moreover, from the public maps of the county to which counsel have referred, that there are already one or more mills operated by.the water held by the dam as it now is, the question is involved in a technical nicety which we do not feel bound to regard.
[512]*512The statute provides “ that no such dam shall be erected to the injury of any mill lawfully existing, either above or below it on the same stream, or to the injury of a mill-site on the same stream on which a mill shall have been lawfully erected and used, unless, ” &c. Now the respondents own what are called the Baltic Cotton Mills, and between the lower or easterly end of the southerly side of the Baltic Cotton Mill race-way and the point in the river below down to which the respondents'own both banks of the river and the bed of it, there is some fall, not exceeding however two or two and a half feet, and the committee say that if this fall is to be deemed a part of that mill, or of its mill-site, then they find that any flow of the water above the point where the respondents own both banks and the bed of the stream will be an injury either to the Baltic mills, or to a mill-site of the respondents on which a mill and mill dam had been lawfully erected.
We are satisfied, under the construction which we have said should be given to this law, that this fall is a part of the Baltic mill-site within the meaning of the statute. A mill-site is the same as a mill privilege, which, in Gould v. Boston Duck Co., 13 Gray, 412, was said “ to embrace the right which the law gives the owner to erect a mill thereon, and to hold up or let out the water at the will of the occupant for the purpose of operating the samfe in a reasonable and beneficial manner.” It must of necessity include a reasonable amount of fall below the mill for the purpose of letting the water flow off without obstruction to the wheels, and we do not think it reasonable to confine the right of the mill owner to the exact amount of fall, to the fractional part of an inch, which will enable the water to flow away from his wheels without obstruction, especially where it appears that he has all along contemplated using his whole fall. The Spragues purchased their land under the bed of the river and on its banks, it may fairly be assumed, for the purpose of obtaining a valuable mill-site. They erected their mill, using "all their fall except two or three feet below their mill, which .they reserved for future [513]*513use when the demands of their business might render it useful to them. Before the bringing of this petition they were contemplating using this fall by adding to their present works, and had surveys made with reference to erecting a new mill below the present one. In a statute of this sort is not their desire to improve this fall as much to be regarded as the desire of the petitioners ? Must they immediately-put in use all their available water pow.er in order to preserve their right to it ? Does the law allow a part of their privilege to be taken from them while they are in the act of preparing to usé it? If so, then this law will prove less beneficial to some mill owners than they expected when they were urging its enactment. If the mill owner is acting in good faith in reserving two or three feet of his fall of water for future use as he may find it necessary or beneficial, he ought to be protected in such reservation. He may by reason of something which could not have been foreseen or which ordinarily would not have been anticipated at the time his mill was erected, find it necessary to deepen his raceway or lower his wheels for the purpose of getting the full use of his mill and the full benefit of the privilege, and we think it entirely proper for him to reserve a small part of his fall to provide against contingencies of this sort. , And if it is reserved for such a purpose, as we think it is in this case by a fair inference from the facts reported by the committee, and not for the purpose of preventing other persons who may be desirous of erecting mills below him on the same stream from acquiring rights to which they might otherwise be entitled, we think it would be unreasonable to deprive him of this right, and in such a case it is no strained construction of language to hold, as we do, that the fall thus reserved is a pai’t of his mill-site.
In regard to what are called the little mills, operated by water drawn from Beaver brook, the court are of opinion that those structures are not mills within, the meatiing of this statute. They were not, according to the report of the committee, constructed as mills for any practical beneficial use, and [514]*514are not and never have been of any use. This of course is not because they are so small as to be called little mills. The size of the mill is of no other importance than as evidence tending to show, with other circumstances, that they were not erected for use as mills ; as in this case, for the purpose, as the committee say, of protecting what the projectors of them deemed their rights in the power and flow of the river below their Baltic mill.. No doubt they might, under some circumstances, accomplish such an object by the erection of a mill. But then it should be a mill for some practical use and benefit other than the mere protection of their right to the fall of the water. If erected and operated, so far as operated at all, solely for this purpose, it has only a colorable and delusive resemblance to a mill, and such we understand these structures to be. We have not therefore considered any of the questions in respect to whether or not they are upon the same stream that the petitioners desire to dam.
The result of the whole case is, that the Superior Court is advised to accept the report of the committee, and to grant the prayer of the petition so far as to allow the petitioners to set or flow back the water of the Shetucket River up to the point in the stream where the respondents own the bed of it and the land on each of its banks, and no further.
In this opinion the other judges concurred.