204 



NFVV ENGLAND FARMER. 



Mat 



MILL.OWNER3 AND LAND-0"WNER3. 

 BY JUDGE FUENCU. 



The right of a land-owner is one of the rights 

 most sacredly protected by the common law of 

 England, which is the basis of the laws of all our 

 States, with the exception of Louisiana. The 

 land-owner is l&nd-lord — lord of the soil — and 

 as such, as a freeholder, has, even in our republi- 

 can times, when most distinctions of estate have 

 been abolished, some privileges above other citi- 

 zens in most of the States, 



The conflict of the rights of mill-owners with 

 those of land-owners, is beginning to attract the 

 attention in this country which it has long re- 

 ceived in England. 



The most valuable lands in the country are gen- 

 erally those which lie upon the streams and rivers, 

 whether known as intervales, bottom lands, 

 swamps or meadows, and these are the lands 

 which are at once injured, if not entirely ruined, 

 by any obstruction of the streams upon which 

 they are situated. 



In New England, and many other northern, 

 and some southern States, as in England, manu- 

 factures constitute an important element of pros- 

 perity, and deserve and receive all encouragement 

 consistent with the public good. Water power is 

 the natural and principal, as it is still the cheap- 

 est, agent for turning the wheels of factories and 

 work-shops. Water power can be raised only by 

 dams across the streams, and dams obstruct the 

 natural flow of the current, and throw back the 

 water upon the land above, either submerging it 

 entirely, percolating water through it below the 

 surface, or merely taking away the fall so as to 

 prevent drainage, according to the situation of 

 the land along the banks. 



Now, a conflict of interests is inevitable be- 

 tween the mill-owner and the land-owner, and 

 probably no experienced farmer will read this ar- 

 ticle without being reminded of some instance 

 within his own knowledge where the fiirmer has 

 been seriously injured by the obstruction of some 

 stream, large or small, passing through or along 

 his farm. Controversies and lawsuits, expensive 

 and almost interminable, occupy the attention of 

 the courts of law, arising from the obstruction, 

 whether rightful or wrongful, of the flow of the 

 water. The mill-owners, usually capitalists, and 

 organized into powerful corporations, know and 

 appreciate not only their rights, but their power, 

 while the land-owners, scattered and often poor, 

 are peculiarly liable to suS"er imposition. Mill- 

 owners, like other men, are selfish, and as their 

 business is at the dam, and not on the land above, 

 they attend more to increasing their water pow- 

 er than to its efl"ects upon the farmer. 



And thus it happens, that wherever there are 

 mills and mill-dams the interests of agriculture 

 suffer, and there is constant danger that they will 

 nufTer wrongfully. 



An agricultural paper is not the proper place 

 for a nice discussion of legal rights, and no such 

 discussion is here intended. A few plain state- 

 ments, however, of the legal rights of land-own- 

 ers, as against those who own mill-dams, may call 

 the attention of farmers to their own interests, and 

 prevent bad legislation, for water power compa- 

 nies are by no means satisfied to leave the matter 

 to the common law, but are constantly asking aid 



from the State in the form of statutes. In sever- 

 al States, as Massachusetts and Maine, there are 

 special statutes, called Mill Acts or Flowage Acts, 

 which authorize the flowage of land, tviihoid the 

 consent of the oumer, making him such compensa- 

 tion as a board of commissioners or jury may 

 think proper to pay him. 



A recent occurrence in Boston, before a com- 

 mittee of the General Court, well illustrates the 

 operation of these flowage acts. A water compa- 

 ny had applied for authority to raise a pond in a 

 neighboring town, and Hon. Edward Everett ap- 

 peared to object. He is reported to have stated 

 to the committee, that he had purchas€'d the land 

 in question for a home for his declining years, 

 and that it was a source of great consolation to 

 him, that, as shown by the surveys, it was pro- 

 posed to put the water upon his land but two feet 

 deep, while all around him was to be covered 

 much deeper. 



This strange provision, this sacrifice of the 

 rights of the land-owner to the convenience of the 

 manufacturer, originated at an early day in Mas- 

 sachusetts, when it was important to encourage 

 "corn-mills," which were essential to the very 

 existence of the colonists, and has been enlarged 

 and continued for the encouragement of manufac- 

 tures. 



The right to take private property for the pub- 

 lic use, as for highways and the like, is every 

 where admitted, and is essential to every govern- 

 ment ; but the power to take a man's land against 

 his will, for the private interest of another man 

 or company of men, is a violation of the first prin- 

 ciple of property. As a new question such a 

 proposition would find no favor with any court of 

 law in all Christendom, but the principle has 

 crept so thoroughly into operation in a few States, 

 that to declare it unconstitutional at this late day, 

 would produce infinite confusion. 



In the States, as in New York, where no special 

 statutes exist, the right of the land-owner re- 

 mains sacred. He has the most absolute domin- 

 ion over his land, consistent with the equal rights 

 of other land-oivners. No man below him can le- 

 gally check the water or put one drop upon his 

 land to his injury. 



The fundamental principle as to all streams 

 and rivers, as applicable to the land-owners on 

 the banks, translanted from the old law-Latin is 

 — The xcater rvns and ougld to run. This means 

 simply, and such is the law, that all the rights of 

 riparian owners are limited to their use of the 

 water as it rw.v?. They make reasonable use of 

 the flowing water for their families, their cattle, 

 and agricultural purposes, but they cannot stop 

 it or divert it from its natural course. The right 

 to raise water by dams does not belong to any 

 man as a mere land-owner. Of course he may 

 raise a pond on his own land if he injures no- 

 body, but his pond is a nuisance to any one 

 whose land is injured by it, and his dam may be 

 torn down without legal process, 



Tho mill-owner, then, has no natural right, no 

 common law right, and if he have no right by 

 special statute, he has no right except what he 

 buys of the land-owners. His right, when pur- 

 chased, is an incumbrance, a servitude on the 

 land of others, exactly like a right of way which 

 a man may grant to another to pass over his land. 

 If he has purchased a right to flow ninetv-nme 



