Olmstead v. Camp

33 Conn. 532

• Court: Supreme Court of Connecticut
• Decided: October 15, 1866
• Status: Published

Opinion

McCurdy, J.

The questions presented in this case are deserving of the most serious consideration, on the one side involving rights of property guaranteed by the fundamental law, and on the other affecting, as long as water' runs, the interests of business and the prosperity of the state.

The constitution declares that “ the property of no person shall be taken for public use without just compensation.” This is indeed a principle of natural law. The decision of the case turns upon the meaning and effect of this provision. The defendant insists that, in-fefor of private rights, the construction should be strict, and that the term “ public use” means possession, occupation, direct enjoyment, by the public. Or in other words that the property must be literally taken by the public as a body into its direct possession and for its actual use, as in the instances of a state-house, a court-house, a fort, an arsenal, a park, &c.

It seems to us that such a limitation of the intent of this important clause would be entirely different from its accepted interpretation,' and would prove as unfortunate as novel. One of the most common meanings of the word “ use” as defined by Webster, is “ usefulness, utility, advantage, productive of benefit.” “ Public use” may therefore well mean public usefulness, utility or advantage, or what is productive of general benefit; so that any appropriating of private property by the state under its right of eminent domain' for purposes of great advantage to the community, is a taking for public use. Such, it is believed, is the construction which has uniformly been put upon the language by courts, legislatures and legal authorities.

Angelí, in his treatise on Water Courses, sec. 457, says: “ It is obvious that the government of no state can administer its public affairs in the manner most beneficial to the community at large if it cannot in particular emergencies and for public utility exercise at least a qualified power of disposing of, or of impairing in value, the property of an individual citizen. To this power, according to Yattel, men have impliedly yielded, although it has not been expressly reserved.” Bynkershoek recognizes the same power whenever “ the public necessity or public utility requires.” Lib. 2, ch. 15. Grotius, Puffendorf and other eminent writers state the principle in similar language. In Beekman v. Saratoga and Schenectady R. R. C.o., 3 Paige Ch. Rep., 73, Chancellor Walworth says: “If the public interest can in any way be promoted by the taking of private property it must rest 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 to exercise the right.” In another case lie says that it is upon this principle of public benefit that the flowage laws of the several states are justified.

Speaking of such laws allowing land to be flowed for mill purposes, Angell says (Treatise on Water Courses, sec. 487) :r “It seems however to be abundantly well settled that it is sufficiently for the public good; for the statutory law of which we have given an account has been too long engrafted in the jurisprudence of the states in which it has been enacted, revised and amended through a long course of legislation, and too steadily sustained by judicial sanction, to be now declared not to be within the eminent domain of the government. More especially should this long and uninterrupted public acquiescence be deemed conclusive, when it is considered that the line of demarcation'between a use that is public and one that is strictly and entirely private is a line not easy to be drawn.” In the case of Fiske v. Framingham Manufacturing Co., 12 Pick., 68, the court, referring to the earlier laws of Massachusetts for the encouragement of mills, says : “We think they will be found to rest for their justification partly on the interest which the community at large has in the use and employment of mills, and partly on the nature of the property, which is often so situated that it could not be beneficially used without the aid of this power.” In Boston and Roxbury Mill Dam Corporation v. Newman, 12 Pick., 480, it is said: “ The principle is, that the lands of individuals are liolden subject to the requisitions of the public exigencies, a reasonable compensation being paid for the damage. It is not taking the property of one man and giving it to another. At most it is a forced sale to satisfy the pressing wants of the public. Now this is as it should be. The will .or caprice of an individual would often defeat the most useful and extensive enterprises if it were otherwise.”

The language of Chief Justice Bigelow, in Talbot v. Hudson, 24 Monthly Law Reporter, (August, 1861,) p. 228, is very full and explicit. “ If land is taken for a fort, a canal or highway, it would clearly fall within the first class (public use.) If it was transferred from one person to another, or to several persons for their own peculiar benefit and advantage, it would clearly come within the second class (private use.) But there are intermediate cases where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must depend on its own peculiar circumstances. In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause of the declaration of rights, every thing which tends to enlarge the resources, increase the industrial energies and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, evidently contributes to the general welfare and the prosperity of the whole community.” Washburn, in his work on Easements, page 326, says, as the result of his examination of the constitutional question: “ Whatever therefore might have been thought of statutes like these in their application to particular cases if the question were now raised for the first time, their validity must be assumed to rest upon premises at once well founded and intelligible.” See also a very elaborate opinion in Newcomb v. Smith, 1 Chandler’s Rep., 71. Also Chase v. Sutton Manufacturing Co., 4 Cush., 152 ; 3 Rent Com., part 3, sec. 34.

A similar view of the meaning of the clause has been taken by our own court. In the case of Bradley v. N. York and N. Haven R. R. Co., 21 Conn. R., 305, Judge Storrs says : “ It is now established by the uniform current of decisions that the public benefit may be so far promoted by the works authorized to be made by such corporations as the defendants, that the property .of individuals authorized to be taken by them by their charter shall be deemed to be taken for the public use.” In Nicholson v. N. York and N. Haven R. R. Co., 22 Conn. R., 86, Judge Hinman remarks: “ Suppose the legislature had incorporated a company with power to erect a mill to be supported by the toll taken from its customers, and had authorized the company to cross highways with their canal or ditch, provided they should restore them to their former condition, the question would be the same as here. If they take property they must pay for it.” In Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. R., 39, the court, (Judge Hinman giving the opinion,) recognise the law that “ the streets, subject to the public easement, are private propertyand yet sustain “the power of the legislature to grant to the plaintiffs the right to lay down their own pipes for the distribution of gas through the streets for their own private purposes.”

It is time that certain of these companies are sometimes said to be of a quasi public character. But the distinction, so far as concerns the taking and using of property, is certainly a very nice one. They buy it, hold, control and convey it as their own ; and they accommodate those individuals, (composing portions of the public,) who have occasion to do business with them in their own way and so far only as they are paid for doing it. Their obligation to the public is similar to that of inn keepers and ordinary carriers. There is no absolute necessity that travellers should be taken from New Haven to New York in three hours instead of six. But the convenience is so great and it affects so many persons that the improved mode is considered as a public benefit. In most if not all the cases where companies have been allowed by law to take private property or interests in it for their own use, they have no public character, except as their operations, intended for their own emolument, tend also to accommodate numbers of others. Of this description are private cemeteries, private ways, gas companies, water and water-power companies, wharf companies, canal companies, having the privilege to erect and run mills and manufactories, and many others which are authorized to appropriate to their use private property or interests therein.

Where there are low meadows or swampy lands, a major part of the proprietors may by statute procure them to be drained at the expense of all, including the minority of .reluctant owners, and may compel' the latter to forever maintain ditches through their respective lots for the common benefit. So the owner of any land may on application to the court obtain a right to drain it by means of ditches through the premises of an adjoining proprietor upon payment of the damage. Gen. Statutes, Rev. of 1866, title 54, secs. 1,11, 13. By a like process, and on a like condition, a person may secure a right to flood a highway by a dam erected for milling or manufacturing purposes. Gen. Statutes, title 31, sec. 21. The privilege of fishing in brooks and ponds and streams not navigable is a private right as much as the fee of the soil, and yet this right is, in part at least, constantly taken away by statutory regulations grounded upon reasons of public policy; which is another expression for benefit to neighbors on the stream or pond. These laws when attacked upon constitutional objections have been sustained for the reason that “ public purposes and uses were to be promoted.” Cottrill v. Myrick, 12 Maine, 222.

Very many highly important statutes affect individual rights most injuriously, but are justified by reason of public policy. Statutes of limitation indirectly take the property of one man and give it to another. The law allowing an estate held in common to be sold at auction on the petition of one who has an interest, may operate to drive the principal proprietor from his house and homestead; and yet the law is perfectly proper and necessary.

The flowage law is based upon a similar necessity. A water privilege formed by a slope extending through the lands of various proprietors is substantially a right held in common. It consists of the whole descent. One tenant owning perhaps only a bog, a rock or a sand-bank on the stream, may by his stupidity, obstinacy or inordinate greed destroy the interests, however valuable, of all the others.

In none of the cases to which we have referred does the public as an active agent take and hold and occupy the property in actual possession. The term “ public use” is synonymous with public benefit or advantage. It is equivalent to the language, so familiar in our statute in relation to highways, “ of common convenience and necessity.”

If there were any doubt on the subject on first principles, we understand it to be the settled law of the country that the flowing of land for the purposes of mills and manufactories, in view of its effect upon the community, is to be considered as a taking it for public use. It would be difficult to conceive a greater public benefit than garnering up the waste waters of innumerable streams and rivers and ponds and lakes, and compelling them with a gigantic energy to turn machinery and drive mills, and thereby build up cities and villages, and extend the business, the wealth, the population and the prosperity of the state. It is obvious that those sections of the country which afford the greatest facilities for the business of manufacturing and the mechanic arts, must become the workshops and warehouses of other vast regions not possessing these advantages; and must receive in exchange for the results of their industry and skill an abundant return of the rich products of the earth, including the precious metals. It is of incalculable importance to this state to keep pace with others in the progress of improvements, and to render to its citizens the fullest ¿opportunity for success in an industrial competition.

The question is asked with great pertinence and propriety, what then is the limit of the legislative power under the clause which we have been considering, and what is the exact line between public and private uses ? Our reply is that which has heretofore been quoted. Erom the nature of the case there can be no precise line. .The power requires a degree of elasticity to be capable of meeting new conditions and improvements and the ever increasing necessities of society. The sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and in cases of gross error or extreme wrong, controlled, by the dispassionate judgment of the courts. In the case of Fletcher v. Peck, 6 Cranch, 128, Chief Justice Marshall says: “ The question whether a law is repugnant to the constitution is at all times a question of great delicacy, which ought seldom if ever to be decided in the affirmative in a doubtful case.” It maybe remarked that the justice and propriety of a flowage law is peculiarly a question for legislative rather than judicial determination, although we have briefly discussed the subject on its merits.

' But the defendant claims that, according to the facts found by the court, the use in this particular case is not of a public nature. Upon this point we can entertain no doubt. From the first settlement of the country grist-mills of this description liavé been in some sense peculiar institutions, invested with a general interest. Towns have procured them to be established and maintained. The state has regulated their tolls. In many instances they have been not merely a convenience, but almost a necessity in the community.

Upon the question whether the petitioner had a right to institute the proceedings we have as little doubt. He was the owner and the only person who could bring the petition. The fact that he had a tenant at will carrying on the establishment can make no difference.

The circumstance that the petitioner had before bringing the application raised the dam, is immaterial. His license had been revoked and the^dam was left without law or right. The case must be treated as though it was not there. It would be absurd to require that the party should first pull it down and then apply for leave to put it up.

We perceive no inconsistency or irregularity in the report of the committee establishing the height of the dam, nor any error in their rulings with regard to evidence.

The report should be accepted and the doings of the committee established. v

In this opinion the other judges concurred, except Hinman, O. J., who dissented.