192 



FOREST AND STREAM. 



[April 5, 1888. 



uidthe fourth section provider for the immediate taking 

 effect of the act. 



it appears f ram the agreed <■:,-,■ tiiut the dam was raised to 

 its present height in t&58, nearly if not quite four years before 

 th-n.-i w a- pa-scd. and is the aainBdara which then existed. 

 It novel hasbeon raised under the aci or because of it. The 

 race authorized tobebuiftby the act, has never been con- 

 structed, andif ithad.lt could be effected in do mannet bj 

 tin- putting i, fishway in or upon the datn, The enibantanen* 



in -upp,. it I In- dam l.iull i.ti tli,. west -idc ,,f 111.' river. :.mt 

 the i m i-tii;n r; factor) whioli ha 

 ■ icpresslj authorized 

 without it- authority trj the 



rnahuei uld bo aflei iteo bj I 



S thing has bean done au 



.my manner affected or impair 



consideration. Therefore not I 



in question, whirl! can | ■ i » 1 1 



geneial not. under consul. i. on- 

 Been ;, continuous tion user for 

 right at common law may be held 

 grantee, but because the grant iieiugoi a special privilege, and 

 nut in operation within ton days utter our State Constitution 

 of 1870 took effect, it wastherebj abrogated. Bee, 'i of Art. 

 XX is ns follows: "All eating' charters or grants, of special 

 OT exclusive privileges, under which organization shall nut. 



have taken place, or whiehshall not have I o in operation 



within ten chive from thij time this constitution takes effect, 

 -hall thereafter have no effect or validity whatever-" 



Second. Nothing which was Bought to be granted bj this 

 prf ate act, is prevented from being done bj the general law 



cqnaeding here Ear the purposes ol the argument, that the 

 grant was valid. 



What was granted by the act according bo its terms was: 

 a. ..it., build a new one 

 such a height as should 

 tower al Montgomery, the 





hea.'r'w. 



hi .list, 



re lawfully built 



Ther 



• being 



to such li 





er of the 



land, .-11111 in no 



subjec 



in- tin- 1 



nlletobei 



h.-l 



tho 





i Bshway. 



■ aot, which is m 



i.-r.-ii la* d i- 



All i 



R, I; ( 



iiiiiufnel 



o., 1 Bald 



mi- 



remains o 



tin- speoial aot 



stance; 



..i the < 



orth are 



1 , 



held t" I" 



Unpaired by the 



wlicthi 



r Cor n<- 



tessil s o 



li. 11 



■t only h 



cause there has 



nt i 1 i t V 



ind ben 



•lit. That 



• «.\ 



•r twenty 



■i-.ii-s, bo thai the 



exercie 



e of the t 



;iant of tl 



1st. The right to i 



i tin 



ise the dai 

 site, but li" 



into 



||| 



• Wit! 

 wer u 



tile 

 » ill' 



": 



•of til 



a 



al.-r 



ll.-N 



po 



.,1 i. 



npa 



rial 



prop 



•let. 



re 



above 



thi 



da II 



gomelV 



v* ate 



po 



\ e 



•• "I'Ol 



in 



ikili: 



H,.- 





ner p 





l.-i 



111 tl 







in. i 



t> fl 



ml sin 





it 



upas 



shi 



uid i 



!-..- 



an 



vine, i 



1 I. 



i 



i-ist-mill- 



s:u\ 



and 



iiii- 



othe 



Ufa 



ighb, for the purpose, ol the advantageous nap of 

 the power thus created, or building a raceway of suitable 

 uapaoitty from tin- dam do any point down the stream from it 

 04 far as the bridge across the river at Oswego, over lauds 

 to third piuties between these points, upon making 

 like eoinpciis-.tion. 



The rich) bo raise the dam to the height which would 

 ■ an- the stream to flow back upon the land then 

 ijwnad by Michael c. Parker and tu build a taoe 

 horn it dUWH Hie stream CD hi- land, was not ..,-.,„t,.,l 

 by tbe-act, and the act will not be 



grain brought to be ground; and providing criminal penalties 

 for violation ol the regulations so imposed. 



i'li. private net under consideration, however, undertook to 

 grant, the powt I in question Pot "tl arrj ing on of the busi- 

 ness of grist-mills, saw -mills or qther manufacturing purposes," 

 for private gum merely, and not tor poi.ii. purposes, and 

 under no limitations or regulations whatever as to the render 



i- pi 



letod, 



ir..t.-.-i 



serviee, 



with no 

 public 



:• in- aire 



Of til!' 



owning the Land, while the Kta 

 to i'. Thomas r. K. K. Co.. lot l\ s. ] 

 Hvde Park. IT I'. S. 0< Hi; The Del. Railro 

 ::.".. Cut n. & E. R. R. Co., L'T l>a SI 33fl 

 v. Warren Bridge, 11 Pet 420, 548; Pro 1 



• ll.u. m, *». 



The grant Of the right to rui 

 lami- .a other owners above ai 

 owners belov. fora race upon r 

 -ri:ii':o.i.i''u _.h en by lh.- act, i 

 general !»*» and. r 



Tl 





I SO as hi flow i la- 

 the lauds of oiher 



mpensation, if con- 

 ay impaired l.v the 

 a power thereby to be 



by it. nor are hi- lia- 

 iiiy thus take or inji 

 •l'l... ..I*. ♦ —# .1.. .. 



The effect of the sub 



oiiitii - to the parties n bom i. 



-.ii-iv aiieei in an\ manner b 



sequent statute is simply to provide thai what he does shall 



be done in a reasonable manuernnd so as not to make his 



• netioii a nuisance. 



ill course it follows thai Hie act will not h 



grant of the stare of what 

 already owned beyond 



could in .1 be held to giv 

 leer, in what tie aln-ndi 



..u ner 



t had 

 pute. 



of what 

 , the grt 



are 



I lie 



155. 



v Mm 



I City. Wal. Ch. (Mieh.l 



'..l..-tlt|lliol,,,| ,,||,| 



i Question is it-.-u ut 



i- to grant to Mi. ha. l t: Parker 

 oiv.-rot taking or injuiiuush aiTe,-' 



erol chars 



passi d in favor • 



nk. powers, alt! 



The general la 



• I, l-io il.awsof 

 it probabh 



• 1810, - 



arts, for tii. 



private 



cts. 



['.. 



Thi 



. I ,n 



pul.l 



- like tliul of 18 

 i:a. to be i... 1 



iill- for grind 

 !iolls. provided f 

 itied 



ig whe 



-.:„■ 



Slieeiheilrate., 



tiller, hi- aid .,, 



and unloading grain Inou^ht to the mill to be ground, and 

 the keeping l.v hun on hand, of accurate measure- toll dish.-.-. 

 and it provnli .1 for penalties for failing to perform any of 

 these duties, or exacting tflare than the prescribed rates of 

 toll (Chapter l.XXI of the Revised Statutes of ls-la, page 3S0) 

 «l„.-h -11.-.---.1.-1 ili.-statute.il' is-.'?, and tic act of |s?-J which 

 - Chapter XCII <>t til- revision of 1*74 (Revised 



Laws ls?4. page Ton. contained the same provlsiona, The 

 iaws is-ir p, 56) undertook to extend the right 

 of the exercise of emiuenl domain given by tho act of 1827, 

 gupra i" dam- on streams tor other tnaoblnery, as well as for 

 mills. 



By the act of 1-Vk IS, 186S. I h£ -ame ).rovisionB were exten- 

 ded to the construction of races for "grist or saw-mills or 

 other machinerv connected with such mills or machinery" 

 M -ycr- Kd. Laws, l8fS, p. "», and aU these amendatotT and 

 extending provisions were incor 

 ing a part of the Review of 1S74 

 The general law oi thi- State. 

 differs, however, very material) 

 consideration. Iu the general Uv 

 a. public one. not only liecaui 

 was formerly supposed to . _ 

 power for mills, because thereby 



si 



acted tor so long a period, 

 ui the special aot under 

 i use is sought to be made 

 t public necessity which 

 i this country for water 

 nly, at least, the 



people were enabled to have grain like wheat, 

 properly prepared for food, but also because this preparation 

 of food l.v this means being made a public matter was by the 

 statutes, which so recognized its necessity as u. matter of pub- 

 lic interest, expressly taken under legislative control, not only 

 as to the impartiality or the. service to be rendered to the 

 people, and the regulation of tho amount of toll which could 

 be exacted, but also to the extent of requiring the quasi ' 

 lio servant, the millers, to assist in loading and 



public neoessij 



it is invoked, i- 



in no n ay to I 



Tin 



Bonaparte v. 

 original sub 



of mankind. 



are of public 

 v justifies the 



n).,elnl'emi- 



wn.ll.l lend to 

 etimtely of that 



might to be of 

 s of any public 

 . high and sov- 



nld this principle be held to limit the right 

 ith.it power, where not onlysucb paramount 

 exists, but where the enterprise in whose aid 

 .matter merely of private gain, and subjected 

 LMiseof the public by regulations providing 

 pits use, upon impartoal term's, and upon 



•v the 



Eject . 



of this pc 



of 



■ paid.. 



i Rl 





by Judge KedtUi (VIII. N, 9. Am. Law^p". I'.'i. Tiefoi-e'that 

 case waB decided, and since the question has never been 

 judicially considered in this State I will i„- pardoned for 

 quoting Ins language 



• The importance and acknoivl.-iig,- l | .lifhYult., „r the question 



inly iii-'if* 



i-d 





I'hi-ii.n 'lie- ea-.- ..| .lli.i.r- i . 



i-USV where lla-s- la'.v- liaw* heeil 



* But 



is- in \ indian mast - ■ . 1 1 1 . i n ai 

 uain. ami thi- may have led Co 

 M that -a '.iiii.i 

 ■in. in saytngtliat tin- legislature 



It tin- public BOOd, anil I li.it is 

 ■ i -'■•■ ■: i.-i ■ vliiii they regard as 



■,d. The private a 

 void, it- Whole -. 

 heir- and assigns, t 



private propel i v foi a private use upon mat 

 without the consent i>i bbeowners. This it was beyond the I 

 power of tin- Legislature to grant to him. Ryereonv. Brown I 

 i'. Midi. :.:...: i-ouglihridge v. Hani-, i'.' Qa. aiK)- Ha-, i 

 ,',.h...-, i '...,:; Hail. ii, Sadler v. Lan^haiii. ::i Ala. :;ll- Tyler 

 ir. Ke.clier. II Yt. ids; Coster \. Ti-.l.- Watei Co .:: t\ I-; (;,,-, -„ 

 IN. .I.i S4; VII. Am. Law Keg. (N. B.) Ti.ii. 



I confess that I have mu,h dillidence in approaehiug this 

 point, [n this State, although no judicial determination of 

 the question has been had. there have been statutes of agen- 



i,i. whi. -h has n., foundation in fa-t. and « hieh will ulti- 



,. Mire !•. uiis-lll- all lie- aid K, lap. .lis. W, desire lo ,!| S - 



llim-liid .In al ol l. asuiiat,!. ...:,:.,: nun :,. a.lv.-uicinp .level- 

 s'!' mem* .a-.- of Rycrsou v. Brown, .sti;)ra, the 



oftheeourt was delivered by Cooley, Ch. ,(.. all the 

 dges concurring. Iti-worthv the attention of this 



i there held that the Michigan statute of )■•;:;, pro- 

 or proceedings to obtain the right, to (low the lands 

 s for water power mill purposes, was unconstitutional 

 1. That as the -tatute made no restrictions upon the 

 which the power obtained under it might be put, 

 s to the kind of manufacture, or the manner ol catry- 

 i: the u— contemplated was not 



cd t 



tbis day, to be dependent for either its establishment or sup- 

 port, upou the appropriation of property against the will of 

 the owner, in ordor to obtain water power to carry it on. 



In Tyler v. Beeoher, gvpra, the Supreme Court of Vermont 

 held such a statute unconstitutional, the use not being for a 

 public use, "at least where the mills were not -compelled !.\ 

 law to rouder service for the public under impartial regula- 

 tions." 



In Jordan v. Woodward, 40 Me. 317. audio a case in 111 Wis. 

 858, it was declared that were the question a newpne and 

 the court unembarassed by former decisions the act would be 

 held as unconstitutional. 



Indeed, no distinction can be found between mill acts. 

 where -iicli compulsory service to the public, u.nd under 

 such impartial regulations is not required!, to laws providing 

 for the taking of laud for private ways, or roads- These aire 

 clearly ■without the poiwer of eminent do'maiai. unless when 



the organic law makes an exception in their IVvor. Crear v. 

 Crossly, JO 111. I?:,. N'osliitt v Tniml.o. :i!i III. IIP. Winkler 

 v. Winkler. JO 111. li'.'. 



Fourth. The general law in Question is fully authorized by 

 the police power of the. Stat*., and makes a rule of conduct. 

 obligatory upon all citizens and propertj owners of lauds 

 within the State who .•„,„- within us provisions. 



The act -imply make- it unlawful to erect or maintain a 

 dam without putting therein a suitable wav for the free ,,„- 



npai 



nd do 



- pa--: 





d aga 



it hod not, in fact, beet 



That it could not be B 



division of this point of 



As-uming then, that 

 mad. - of the 



whether the ol 

 a nuisance, bee 



H appears m 

 fchehomei if ih 



'emulation for the public b-nc lit. and in 

 ijury to pri- 



■asation. whenovoi to the eternise .of 

 egislature deems it necessary for the 



wile,, ih.- erection eoni-s to o- a 



rial to consider whether the dam in 

 on thai character: although its origi- 

 rposes, and its continuance 

 ii-.!!;. IftWfUl. 



, prevented the free passage ot iish up 



tshed that the right of sueh 



-o the people, and could not be pre- 



tanfie "as thereby developed, and that 



granted awa\ 



if oh-lr 



had cc 



Laws for the protei 

 enacted in 1 «..::. 1 



• ■: :■ i 



to affect the public injm-i- 

 o i-oiild he held to lie just ilieo 



hat tin. stream is i,aturnl!v 



. of ti-h which arc valuable 

 c law of this State. It is a 

 not .ii-' v bl at the court will 

 original abundance ol Shout 



.... had d- 



. I Wharton on E 



nit- in thi- Btatt • 

 atil is;-: ihat the depletion 

 time obvious enough to re- 

 time the public i : 



■ -. out And since 



a pi 



:?. b 

 h in our natural 

 quire legislative action. By that 

 the causes of it had I me -uiii. 



licit lime theefforts of thepeopl 

 been constant, to repair the injury, l.v preventing improper 

 capture and interference, and hv n.-stocking Hn- si reams fn m 

 arrili-ial and other sources. 



It cannot he improper in this connection to quote from 

 official reports of the Fish Commissioners Of the State to the 

 Legislature, through the Governor The effect of these dams 

 as obstructions, and the BilU!uion of the— stream-- and Hi- 

 ,. . made under the authority of theState, can not 

 be better akprossed. 



From their report nt Sepu-i r .-■•. r-l. we extrnet the 



following: 



■w. ... 1 



. -i. •• H si,, ailil its 



ig ih • river are, In our 

 .. ■'. r the i.iss. 



■ ■- Hug but ... 



■: alnu .■■ - e ■ -• si 



bi well .lair, i.i.th in and 



■ Qshermen. 

 being constontlj 



From their report of September SO, 18S8J the following are 

 token: 



.-rlalie t 



) sleek l 



II 



l'l 





would be 







.1 lie ].!" 



Xitably u 







.all this 



work .-ai 







where - 



ic-h slrea 









leflted. o 







all |..>rt 



..us will 







liO'.v 



tbis flshwav was built we could not compel those owning 



iai. : .l al...... to i-jmplv v.-|i|. the law. but have, since its 



:.n. notified all thattb"..- law must he complied 



i urge a compliance at ouce. A ve.rv large uinnl.r-r of ,i.m 



led di-ii' .vilfiugiiess to roinplv, l"" sotin.-of tbe.ni have since 



d to resist. Yom- ciimnissi.-.:: undertake 



the law regarding tbu rnatt..-r. 



t In, unless shown by the courts that the law is rucousiitu- 



6 olaimed bv them! v.'e hope, however, to • Id neb 



Proper plans, specifications a:ai uiodeis have l.-eif i.trnislteil 



era for inspeetTou, and oil assi ill be t'-.ir- 



■onialon, there is no branch of on.- v.ork of moreituport- 

 u bringing to' a buccessful i;s'Jt t he qucstsou of Dsbways 

 is Ttien with proper proieciga aad care, j'i.liutous •&&?. 

 s voungTlsb Ss ann'uariy ?atlier*d By the CoaimiBsion , «U-» 



