244 BOARD OF AGRICULTURE. 



the mill-owner may flow anjj lands not belonging to liim, neces- 

 sary to raise a suitable head of water for his mill, upon payment 

 of damages assessed by a jury. Under this statute it is im- 

 portant however to note that the jury were to determine' how 

 far the circumstances of each particular case justified such 

 flowing. This statute was followed by others in 1824 and 1825, 

 and the Act of the Revised Statutes. The statutes of Maine, 

 Rhode Island, and North Carolina, arc generally similar in 

 principle to those of Massachusetts. 



It is asserted or implied in the resolutions submitted to your 

 Committee that these statutes abuse the right of eminent 

 domain, infringe the spirit of the constitution, and are not 

 within the power delegated by the people to the legislature. 

 But these statutes have too long been the subject of judicial 

 decision to permit us to dispute for a moment their constitu- 

 tionality. While we must admit the undoubted constitutionality 

 of these laws, the propriety and necessity of their continuance 

 under change of circumstances are legitimate subjects of inquiry. 

 In the case of Stowell v. Flagg, 11 Mass. Reports, CG4, Chief 

 Justice Parker when speaking of the statutory laws of our 

 State subsequent to the Revolution, which re-enacted, in sub- 

 stance, the provincial Acts to wliich we have referred, said : 

 " We cannot help thinking that this statute was incautiously 

 copied from the ancient colonial and provincial Acts which 

 were passed when the use of mills, from the necessity of them, 

 bore a much greater value compared to the land iised for the 

 purposes of agriculture than at present." Whether the learned 

 Chief Justice was right in his impression at that period or not, 

 your Committee cannot fail to observe that under these mill 

 Acts, originally intended to encourage saw and grist-mills only, 

 a large and important manufacturing interest has grown up in 

 Massachusetts, furnishing employment to the people, encour- 

 agement to commerce, and a market to the farmer. With 

 rights already accjuired we cannot if we would, legally interfere. 

 But your Conunittce are informed that in many portions of the 

 Commonwealth saw-mills or small manufacturing establish- 

 ments furnishing little or no employment to the people, running 

 at irregular intervals, and, undoubtedly, manufacturing so 

 small an amount that the net product is often much less than the 

 possible net product of the hundreds of acres of land which 



