McCubdy, J.
The principal point raised in this case, the constitutional question, was decided after full consideration in the case of Olmstead v. Camp, 33 Conn. R., 532. But as the question was one of great interest, and it was suggested that new views might be presented bearing especially on the [85]*85particular facts of this case, a very elaborate argument was again listened to by the court.
It was claimed that in Massachusetts, where the flowage laws were said to have originated and where they have been more frequently discussed and sustained than in any other state, principles in relation to the rights of mill-owners and riparian proprietors have been recognized as a pari of their common law somewhat different from those which exist in this state and elsewhere.
However this may be, we do not understand that in that state or in any other of the many which have enacted and upheld such laws, their defence has been placed upon any peculiarity of their common law. They are every where justified upon the broad ground of a paramount right of the government to take private property, upon making compensation, in cases of necessity or great public utility. It is this general authority, which, in the opinion given in the case referred to, we have endeavored to explain and sustain by considerations which seemed to be appropriate. We see no occasion to change the views then expressed.
But it is urged that the statute provides only for a dam to be raised on the land of the mill-owner or that of another by his consent, and if it is erected on the land of the mill-owner it must be on the identical tract on which the mill stands ; and it appears in this case that the dam stands on a lot of the petitioners separate from the mill-site ; the land of another person lying between the two tracts. We are unable to see any force in this objection. The object of the clause relied on is to require that the dam shall be built on a site where the owner has a right to place it. This right may result from his own ownership or from an agreement with the proprietor. The words “ on the same ” refer to the antecedents,' “ his own land ” or “ land of another.” There is no conceivable reason for requiring the mill and the dam to be on precisely the same tract.
The respondents further object that it does not sufficiently appear that the parties were not able to agree in relation to the damages. This is a question of fact, and the superior [86]*86court has found that they were unable to agree. If it were proper to re-examine the question we should conclude that the evidence abundantly justified the finding. The petitioners called on the respondents to state their terms for the privilege of flowing. One party made no answer, and the other named so large a sum that the proposition was rejected.
Another objection to the report of the committee is, that they do not establish with sufficient certainty the height to which the dam may be raised. It would unquestionably have seemed more definite if they had established the height by marks upon a rock, or pillar, or some other permanent object. But we have a right to presume that the height to which the petitioners were entitled was well known and established by some such mark, and the committee taking that for their basis allow a certain number of additional feet.
We see no error in the proceedings, and the decree is affirmed.
In this opinion Park, J., concurred.
Butler, J.
I was fully satisfied at the conclusion of the argument in Olmstead v. Camp, (33 Conn., 532,) that the fiowage law was sustainable upon strict and recognized principles of constitutional law ; and a re:examination of the question has confirmed rather than shaken that opinion.
Like every other question of constitutional power exercised by the legislature under our state constitution, it presents itself to the mind in a three-fold aspect, and logically involves a three-fold enquiry.
First — Whether the power exercised is delegated by the people to the legislature in and by the constitution specifically, or by a general grant of power sufficiently comprehensive to embrace it.
• Second — Whether the exercise of the power as exercised conflicts with the constitution and laws of the United States, or with any other provision of the constitution of this state. And,
Third — Whether the exercise of the power in the particular case and manner is contrary to natural justice. For, as it [87]*87is to be conclusively presumed that the people, while possessing the power, would not have exercised it contrary to that fundamental principle of the social compact, it is in like manner to be presumed that they did not intend to delegate and have not delegated the power so to exercise it to the legislature. An unjust use of the power is therefore an abuse of it and void.
We come then to the application of these enquiries to the case in hand. And first, — What is the power which has been exercised, and is it delegated in the constitution ?
The power exercised is the right of eminent domain, which is a part of the legislative power, and is unquestionably delegated in the first clause of the third article of the constitution. This right is a paramount right attached to every man’s land, and lie holds it subject to its exercise. Bouvier defines it to be the right which the people or government retain over the estates of individuals to resume the same for public use ; and that definition is sufficiently comprehensive and in accordance with the authorities.
2. The law in question does not conflict with the constitution or laws of the United States, or any provision of the constitution of this state. There is a clause in the bill of rights requiring just compensation to be made when the power is exercised, and as a condition of its exercise. Much misconception has prevailed in relation to the nature of that clause, but it is simply a condition attached to the exercise of the right of eminent domain. It does not purport to be a grant of power, but recognises its existence. Its import is precisely what it would be if the language used had been, “ the right of eminent domain shall not be exercised unless just compensation be made for the property taken.” The convention which framed the constitution of 1818 was composed of very able men,many of them distinguished jurists. They framed a constitution remarkably concise, clear and unambiguous. Whatever they intended to say they said, and in simple language, so that it could be understood by the people. They knew, when they provided that the whole legislative power should vest in the legislature, that the right of eminent do[88]*88main would vest as a part of it, and they did not except it. They therefore intended it should vest. So when they framed the condition to be attached to its exercise, they did not use the words “ eminent domain,” for those words would not have been intelligible to the people, but they did use the precise language employed by jurists to define and describe that right. It is evident therefore that they intended to attach the condition to the exercise of that right merely, and there is not in that clause, or anywhere else in the constitution, ground for suspicion even, that they intended to define or limit in any way or manner the right itself. The law in question complies with the condition and is not in conflict.
3.
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McCubdy, J.
The principal point raised in this case, the constitutional question, was decided after full consideration in the case of Olmstead v. Camp, 33 Conn. R., 532. But as the question was one of great interest, and it was suggested that new views might be presented bearing especially on the [85]*85particular facts of this case, a very elaborate argument was again listened to by the court.
It was claimed that in Massachusetts, where the flowage laws were said to have originated and where they have been more frequently discussed and sustained than in any other state, principles in relation to the rights of mill-owners and riparian proprietors have been recognized as a pari of their common law somewhat different from those which exist in this state and elsewhere.
However this may be, we do not understand that in that state or in any other of the many which have enacted and upheld such laws, their defence has been placed upon any peculiarity of their common law. They are every where justified upon the broad ground of a paramount right of the government to take private property, upon making compensation, in cases of necessity or great public utility. It is this general authority, which, in the opinion given in the case referred to, we have endeavored to explain and sustain by considerations which seemed to be appropriate. We see no occasion to change the views then expressed.
But it is urged that the statute provides only for a dam to be raised on the land of the mill-owner or that of another by his consent, and if it is erected on the land of the mill-owner it must be on the identical tract on which the mill stands ; and it appears in this case that the dam stands on a lot of the petitioners separate from the mill-site ; the land of another person lying between the two tracts. We are unable to see any force in this objection. The object of the clause relied on is to require that the dam shall be built on a site where the owner has a right to place it. This right may result from his own ownership or from an agreement with the proprietor. The words “ on the same ” refer to the antecedents,' “ his own land ” or “ land of another.” There is no conceivable reason for requiring the mill and the dam to be on precisely the same tract.
The respondents further object that it does not sufficiently appear that the parties were not able to agree in relation to the damages. This is a question of fact, and the superior [86]*86court has found that they were unable to agree. If it were proper to re-examine the question we should conclude that the evidence abundantly justified the finding. The petitioners called on the respondents to state their terms for the privilege of flowing. One party made no answer, and the other named so large a sum that the proposition was rejected.
Another objection to the report of the committee is, that they do not establish with sufficient certainty the height to which the dam may be raised. It would unquestionably have seemed more definite if they had established the height by marks upon a rock, or pillar, or some other permanent object. But we have a right to presume that the height to which the petitioners were entitled was well known and established by some such mark, and the committee taking that for their basis allow a certain number of additional feet.
We see no error in the proceedings, and the decree is affirmed.
In this opinion Park, J., concurred.
Butler, J.
I was fully satisfied at the conclusion of the argument in Olmstead v. Camp, (33 Conn., 532,) that the fiowage law was sustainable upon strict and recognized principles of constitutional law ; and a re:examination of the question has confirmed rather than shaken that opinion.
Like every other question of constitutional power exercised by the legislature under our state constitution, it presents itself to the mind in a three-fold aspect, and logically involves a three-fold enquiry.
First — Whether the power exercised is delegated by the people to the legislature in and by the constitution specifically, or by a general grant of power sufficiently comprehensive to embrace it.
• Second — Whether the exercise of the power as exercised conflicts with the constitution and laws of the United States, or with any other provision of the constitution of this state. And,
Third — Whether the exercise of the power in the particular case and manner is contrary to natural justice. For, as it [87]*87is to be conclusively presumed that the people, while possessing the power, would not have exercised it contrary to that fundamental principle of the social compact, it is in like manner to be presumed that they did not intend to delegate and have not delegated the power so to exercise it to the legislature. An unjust use of the power is therefore an abuse of it and void.
We come then to the application of these enquiries to the case in hand. And first, — What is the power which has been exercised, and is it delegated in the constitution ?
The power exercised is the right of eminent domain, which is a part of the legislative power, and is unquestionably delegated in the first clause of the third article of the constitution. This right is a paramount right attached to every man’s land, and lie holds it subject to its exercise. Bouvier defines it to be the right which the people or government retain over the estates of individuals to resume the same for public use ; and that definition is sufficiently comprehensive and in accordance with the authorities.
2. The law in question does not conflict with the constitution or laws of the United States, or any provision of the constitution of this state. There is a clause in the bill of rights requiring just compensation to be made when the power is exercised, and as a condition of its exercise. Much misconception has prevailed in relation to the nature of that clause, but it is simply a condition attached to the exercise of the right of eminent domain. It does not purport to be a grant of power, but recognises its existence. Its import is precisely what it would be if the language used had been, “ the right of eminent domain shall not be exercised unless just compensation be made for the property taken.” The convention which framed the constitution of 1818 was composed of very able men,many of them distinguished jurists. They framed a constitution remarkably concise, clear and unambiguous. Whatever they intended to say they said, and in simple language, so that it could be understood by the people. They knew, when they provided that the whole legislative power should vest in the legislature, that the right of eminent do[88]*88main would vest as a part of it, and they did not except it. They therefore intended it should vest. So when they framed the condition to be attached to its exercise, they did not use the words “ eminent domain,” for those words would not have been intelligible to the people, but they did use the precise language employed by jurists to define and describe that right. It is evident therefore that they intended to attach the condition to the exercise of that right merely, and there is not in that clause, or anywhere else in the constitution, ground for suspicion even, that they intended to define or limit in any way or manner the right itself. The law in question complies with the condition and is not in conflict.
3. The principal objections to the law are founded on the assumption that it is contrary to natural justice. I am satisfied that it is not. The light to take private property for public use, or of eminent domain, is a reserved right attached to every man’s land, and paramount to his right of ownership. He holds his land subject to that right, and cannot complain of injustice when it is lawfully exercised. The right consists of two elements, — the right to take, and the right to judge of and determine the exigency and the necessity for taking it. These are both and equally vested in the legislature. Bouvier, (Law Dictionary,) says, “ It belongs to the legislature to decide what improvements are of sufficient importance to justify the exercise of the right of eminent domain.” And the authorities cited fully sustain him. It is for the legislature therefore to determine what is required by the wants of the people, or for the public good, in the exercise of a sound discretion. With the bona fide and not unreasonable exercise of that discretion courts cannot interfere. As the legislature in this case have exercised their discretion honestly, deliberately, and after much agitation of the subject, and the law is confessedly beneficial to the public interest, there would seem to be no question about its constitutionality.
But several objections are made on the ground that the right is limitéd to actual governmental or individual use, and they must be fairly examined.
The objections are made in various forms, but they may all [89]*89be resolved, substantially, into two classes. The first class of objectors ignore entirely the fact that the right of eminent domain is granted in the constitution as part of the legislative power, and assume the grant to be by the clause in the bill of rights; and further assume that every man is the absolute owner of his property, and that the grant is an invasion of that ownership; and then argue that the grant is in derogation of common right, and to be strictly construed; and therefore that the terms “ public use ” should be construed to be a use by the government, its officers and agents only. As this objection is founded on an ignorance of the existence of the right of eminent domain in the legislature independent of the clause in question, a false assumption in relation to the character of that clause, and a false assumption as to the absolute ownership of the property, and is wholly unsupported by authority, it is entitled to no consideration.
The second class of objectors concede the right of eminent domain in the legislature, but claim that the clause in the bill of rights is an implied prohibition against taking the property for any other purpose, and that the words “ public use ” must be construed to mean an actual personal use by the government or by individual members of the public. I do not think the claim that the clause in the bill of rights contains an implied prohibition is correct, or see its materiality if it is. It is the essence of the right of eminent domain that the property shall be taken “ for public use,” and the question remains open, what is the meaning of the words, and who is to determine what constitutes such use, whether there be such a prohibition or not.
But suppose it admitted that some actual use by the public is essential to the just exercise oí the right of eminent domain, the law will still be constitutional.
This class of objectors concede that grants of rights of easement to railroad companies, water companies for the distribution of water in cities and villages, and gas light companies, are constitutional, because they say the public use them. But let us see what use the public make of them. • A takes his goods to the railroad, pays the freight to their place of destina[90]*90tion, places them in the cars, or they are placed there by the employees of the. company, and they are transported pursuant to his contract. Now to have the use of a thing in the sense in which the objectors use the words, is to have some exclusive occupation and control of it. What irse or control has A of the road, its equipments or operation, by reason of the fact that he has shipped his goods upon it ? None whatever. If he can be said to use anything it is the transportation, the result or product of the use and operation of the road and its equipments by the company. Nor is the case different if he applies for transportation for himself, except in the deceptive particular that, being animate and having the power of locomotion, he is expected to place himself upon the train instead of being placed there by the employees of the company. In all other respects he is as much the passive recipient of transportation, as the result or product of the operation of the road, as his inanimate goods. So too of the water power company. The public have no use of the franchise or structure, nor control of its operations. All they have is the use of the water delivered to them by the operation of the structures as used and controlled by the company. The saméis true of the gaslight company.
The following proposition then may be deduced from the three instances alluded to and conceded to be constitutional, viz.:
The legislature may lawfully grant rights of easement to individuals or corporations to enable them to erect and operate structures, if the result of their operation is the production of an article or thing intended to be furnished or sold to the public for a beneficial use,' and to supply their reasonable wants.
This proposition covers the case in hand as perfectly as it does either of the other three, for the fiowage law is intended to grant rights of easement which will enable individuals or corporations to enlarge or erect and operate structures, the result or product of the operation of which will be articles, (such as cotton or woolen cloth and the like) intended to be sold to the public for their necessary and beneficial use. [91]*91And if there be any element of public use in the other cases or either of them, it is contained in the law in question, and it is constitutional upon the principles claimed or conceded by this class of objectors.
. But there is no such limitation, nor any specific limitation to the bona fide exercise of their discretion by the legislature, known to the law. The cases cited from Judge Kent are not cases of limitation, but of arbitrary power, exercised pretendedly and fraudulently, under cover of the right. If the true nature of the right of eminent domain, and the true object and operation of the clause in the bill of rights are regarded, all difficulties vanish ; and I have yet to hear or read the first argument or opinion adverse to the law in question, having any plausibility, which was not founded on a misconception of one or the other. A distinguished judge, even, speaks of the taking and grant “ as a forced sale; ” but if such were their character they could not stand an instant. The legislature cannot compel one man to sell to another. The true theory and principle of the matter is, that the legislature resume dominion over the property, and having resumed it, instead of using it by their agents, to effect the intended public good, and to avoid entanglement in the common business of life, they re-vest it in other individuals or corporations, to be used by them, in such manner as to effect directly or indirectly, or incidentally as the case may. be, the public good intended. And it is perfectly immaterial to the owner of the property in what manner the legislature use it or cause it to be used after they have resumed it and he is justly and fully compensated. He has on that account- no ground for complaint. Upon the strictest principles, therefore, I consider the law constitutional.
Upon the other points I also concur with the majority of the court.
Carpenter, J.,' concurred in both the foregoing opinions, Hinman, C. J., dissented.