SECRETARY'S REPORT. 245 



they flow or destroy. But in these cases the right of flowage is 

 generally acquired by prescription or absolute grant, and the 

 question presented is an economical question presented to the 

 judgment of the mill-owner himself. 



Since the enactment of the mill Acts, however, and since 

 the establishment of the large manufactories of this Common- 

 wealth, the use of steam as a motive power has been discovered 

 and has, at last, become a cheap and constant source of power, 

 enabling the manufacturer to establish his mill where great 

 exix?nse of carriage for the raw material may be saved, and 

 shipment of the manufactured article readily effected. And 

 the question properly recurs whether, under existing circum- 

 stances, a jK)wer so stringent as is now given by the mill Acts 

 should be granted by the legislature. The real question is 

 whether authorizing the flowing of another's land, without his 

 consent, is in all cases sufficiently for the public good to justify 

 depriving the owner of the use of it, even for a just compensa- 

 tion. It is not pretended that the legislature can take the 

 property of one individual, and, without his consent, give it to 

 another, even for a fair compensation, except upon the highest 

 and surest grounds of public benefit or necessity. 



It cannot be denied that the legislature as well as courts of 

 law, seem hitherto to have been disposed rather to enlarge than 

 to curtail the statutory privileges of mill-owners. So broad a 

 construction has been given to the statutes of Massachusetts, 

 that the power of creating reservoirs, remote from, but auxiliary 

 to the pond and dam below, has been vindicated ; and in the 

 case of the "Woolcut Manufacturing Company v. Upham, 5 

 Pick. 292, the reservoir for the use of the mill was more than 

 three miles above the poJid at which the mill was erected, — and 

 the court have even decided that if the owner of a mill erects 

 a dam at the outlet of a natural pond, which flows into a stream 

 upon which his mill is situated, for the purpose of creating a 

 reservoir for his mill, he has a right to flow the land of another 

 all about the pond. 



It is difficult to perceive how it can be honestly alleged that 



in every case of flowage by one who is about to erect a mill, 



however small, with a product however insignificant, running, 



perhaps, at irregular intervals, and flowing or inundating lai-ge 



3.» 



