"public use" than in ordinary cases. The most striking illustration of what may be termed exceptions to the rule that to warrant the exercise of the power of eminent domain, as for a public use, there must be a right of user on the part of the public or some portion of it, or some public or quasi public agency, is found in those cases involving mills, dams, and water powers, and the flowage of lands for these purposes. In a case which is instructive as to the bearing on the present subject of mill cases generally, the Federal Supreme Court 37 has pointed out that general mill acts exist in a great majority of the states; that this has been true since an early date, some of these statutes antedating our Declaration of Independence; and that in most of these states the validity of such legislation has been assumed. The court further said: "The principal objects, no doubt, of the earlier. acts, were gristmills; and it has been generally admitted, even by those courts which have entertained the most restricted view of the legislative power, that a gristmill which grinds for all comers, at tolls fixed by law, is for a public use. . . . But the statutes of many states are not so limited, either in terms or in the usage under them. In Massachusetts, for more than half a century, the mill acts have been extended to mills for any manufacturing purpose. And throughout New England, as well as in Pennsylvania, Virginia, North

37 Head V. Amoskeag Mfg. Co. (1885) 113 U. S. 9, 28 L. ed. 889, 5 Sup. Ct. Rep. 441.

38 The court said: "The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use, in the constitutional sense, is so important and far-reaching, that it does not become this court to express an opinion upon it, when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulat

use.

Carolina, Kentucky, and many of the western states, the statutes are equally comprehensive. It has been held in many cases of high authority, that special acts of incorporation, granted by the legislature for the establishment of dams to increase and improve the water power of rivers and navigable waters, for mechanical and manufacturing purposes, are for a public In some of those cases, the authority conferred by general mill acts upon any owner of land upon a stream to erect and maintain a mill on his own land and to flow the land of others, for manufacturing purposes, has been considered as resting on the right of eminent domain, by reason of the advantages inuring to the public from the improvement of water power and the promotion of manufactures. . . . And the validity of general mill acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions." But in this case the court sustained the validity of the New Hampshire statute authorizing the flowing of lands by the maintenance of milldams, on payment of compensation, not on the ground that such mills were of public benefit and therefore justified the exercise of the power of eminent domain, but on the ground that the statute was a valid regulation of the right of the several owners of land adjacent to a stream, in the common interest of all and with due regard to the public good.

Hampshire statute

38

ing the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed, with a due regard to the interests of all, and to the public good, is within the constitutional power of the legislature. When property, in which several persons have a common interest, cannot be fully and beneficially enjoyed in its existing condition, the law often provides a way in which they may compel one another to submit to measures necessary to secure its beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified." Head v. Amoskeag Mfg. Co. (U. S.) supra. And, after referring, by way of illustration, to the rights of tenants in common of land or

The Arizona court has pointed out 39 that all condemnation acts are predicated on the proposition that private ownership must yield to public necessity, and that in most of the states, and under ordinary conditions, laws like the mill-site acts, the dam acts, and the acts allowing land to be condemned to facilitate mining and irrigation, would not be passed, and might not be thought of sufficient public necessity and importance to be upheld. if passed; that the conflict in the authorities may be accounted for in the different conditions that exist in different states. It was further said that the authorities are numerous that sites for manufacturing may not be condemned, though manufactories are of great public utility and promote the

water rights, the court concluded that, independently of any weight due to the opinions of the courts of New Hampshire (from which state the case was appealed) and other states, maintaining the validity of general mill acts as taking private property for public use, the statute under which the manufacturing company in this instance had flowed the land in question was clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good, in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which, without some such regulation, could not be beneficially used.

39 Oury v. Goodwin (1891) 3 Ariz. 255, 26 Pac. 376.

40 In Olmstead v. Camp (1866) 33 Conn. 532, 89 Am. Dec. 221, in sustaining as a public use the right to flow land for the purpose of a gristmill, which it was found would be of public benefit in grinding for the public, although it was not under obligation to do so, the court observes that one of the common definitions of the word "use" is "usefulness, utility, advantage, productive of benefit; and that public use might therefore well mean public usefulness, utility, or advantage, or what is productive of public benefit; so that any appropriating of private property by the state under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use. It was further said: "The term 'pub54 A.L.R.-3.

general welfare in a pre-eminent degree; and that the reason given is that a sufficient number of sites can be had by purchase, without the necessity of condemnation; but that a different rule prevails where manufacturing is done by water power and mill sites are few.

In Connecticut it has been held that the development of water power for private industrial enterprises is of sufficient public utility to justify the taking of private property as for a public use; and this has been held true not only as to gristmills which were not obliged to grind for the public, but also as to such private enterprises as mills for the manufacture of ax handles and tinware.40 But more recently the Connecticut court has relic use' is synonymous with public benefit or advantage. It is equivalent to the language, so familiar in our statute in relation to highways, 'of common convenience and necessity.' If there were any doubt on the subject on first principles, we understand it to be the settled law of the country that the flowing of land for the purposes of mills and manufactories, in view of its effect upon the community, is to be considered as a taking it for public use. It would be difficult to conceive a greater public benefit than garnering up the waste waters of innumerable streams and rivers and ponds and lakes, and compelling them with a gigantic energy to turn machinery and drive mills, and thereby build up cities and villages, and extend the business, the wealth, the population, and the prosperity of the state. It is obvious that those sections of the country which afford the greatest facilities for the business of manufacturing and the mechanical arts must become the workshops and warehouses of other vast regions not possessing these advantages; and must receive in exchange for the results of their industry and skill an abundant return of the rich products of the earth, including the precious metals. It is of incalculable importance to this state to keep pace with others in the progress of improvements, and to ren-. der to its citizens the fullest opportunity for success in an industrial competition. The question is asked with great pertinence and propriety, What, then, is the limit of the legisla

garded the cases arising under the flowage act as constituting an exception to the general rule that use by the public is essential to constitute a public use warranting the exercise of the power of eminent domain, and has

tive power under the clause which we have been considering, and what is the exact line between public and private uses? From the nature

of the case there can be no precise line. The power requires a degree of elasticity to be capable of meeting new conditions and improvements and the ever-increasing necessities of society. The sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and in cases of gross error or extreme wrong, controlled, by the dispassionate judgment of the courts."

And, following the above case, the court in Todd v. Austin (1867) 34 Conn. 78, sustained the constitutionality of the flowage law on the ground that property was taken for a public use, although it appears that one of the petitioners for the right to raise a milldam owned a gristmill, and that of the other two petitioners one owned a mill for the manufacture of ax handles, and the third a mill for the manufacture of tinware. At least two members of the court concurred in the proposition that the legislature may lawfully grant rights of easement to individuals or corporations to enable them to erect a particular structure, if the result of their operations is the production of an article or thing intended to be furnished or sold to the public for a public use, and to supply their reasonable wants.

In Water Comrs. v. Manchester (1913) 87 Conn. 193, 87 Atl. 870, Ann. Cas. 1915A, 1105, affirmed without opinion in (1915) 241 U. S. 649, 60 L. ed. 1221, 36 Sup. Ct. Rep. 552, the court said that in that state it was settled that public use means public usefulness, utility, or advantage, or what is productive of general benefit; so that any appropriating of private property by the state under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use. The court observes that this doctrine, although generally received, has been regarded by some courts as carrying the doctrine of public use to an extreme, and that in Massachusetts, as well as in the Su

indicated approval of the view that ordinarily there must be a common right on the part of the public to the use or benefit of the property taken, to warrant exercise of the power of eminent domain.41

preme Court of the United States, flowage statutes have been justified as a mode of regulating the use of water power in running streams which without some such regulation could not be beneficially used. The Manchester Case was one in which the court sustained, as taking land for a public use, the validity of a statute authorizing a municipality to construct a compensating reservoir for the purpose of restoring the flow of a river from which it had diverted water. Upon subsequent appeal in (1915) 89 Conn. 671, 96 Atl. 182, affirmed in 241 U. S. 649, 60 L. ed. 1221, 36 Sup. Ct. Rep. 552, the court observed that it had nothing to add to its former opinion on this point, except to repeat its conclusion that the preservation of the flow of the "Farmington river" is a public use, and that the maintenance of a reservoir for that purpose was properly regarded by the legislature as a part of the general plan for improving the water supply of the city of Parker.

41 Connecticut College V. Calvert (1913) 87 Conn. 421, 48 L.R.A. (N.S.) 485, 88 Atl. 633. The case on its facts is within the scope of the annotation in 50 A.L.R. 1530, on the subject of the constitutionality of statutes conferring the power of eminent domain on private corporations or associations for educational, religious, or recreational purposes; it being held that a college conducted by a private corporation, with discretion as to admission of students, could not constitutionally be endowed with the power of eminent domain, as this would amount to a taking of property for a private, and not a public, use. The court said that the term "public use" as related to condemnation proceedings has been strictly limited in some states to uses governmental in their nature when administered, so that the public has a common right upon equal terms to the use or benefit of the property taken; that in Connecticut and some other states it has been defined as including also uses governmental in their nature, although administered for a private interest, when the taking itself is of great advantage to the community;

In Iowa an early decision seems to support the public benefit doctrine as

that these two definitions correspond to the active and passive significance of the word "use", as meaning enjoyment or as meaning utility; but that they both lead to the same result except on the question whether the public benefit to be derived from the development of the material resources of the state will justify the delegation of the power of eminent domain in favor of private owners of land so situated that their economic value cannot otherwise be realized, the cases dealing with this special problem arising under flowage acts and statutes, such as those in aid of mining, drainage, and irrigation, which might properly be classified in a separate group. And, as to the exceptional nature of the flowage and other classes of cases indicated, the court said: "The developed and undeveloped water powers of Connecticut constitute, in their aggregate, a public asset, which is and will be of great value in the international struggle for economic vantage; and it seems to us to be the right of the state to promote the development of such a natural resource, by delegating the power of eminent domain for that purpose so far as may be necessary. And if the fact be, as it is with respect to our Connecticut water powers, that they are for the most part too small for a use by the public, and are adapted only for use in connection with private industrial enterprises, so that the delegation of the power of eminent domain in favor of private persons is necessary to the development of the aggregate water powers of the state, then such an exceptional delegation of

the

ad

power of eminent domain is justified on the ground that it is to be exercised primarily for the public use of developing the water powers of the state, and the incidental benefit to the private interest involved is but the necessary means to that end. In all such cases the use or purpose of developing the material resources of the state is governmental in its nature, and the delegation of the power of eminent domain to private landowners for that purpose is justified not only by its necessity, but also because the public benefit aimed at is accomplished as soon as the water power, or other natural resource, is developed, and does not depend upon the mode

applied to mills,42 though the doctrine is now, as a general proposition, of its continued use. Such a taking is directly for the benefit of the state as the owner in sovereignty of its own territory. The principle of the cases arising under legislation in aid of the material resources of the state is limited, as already pointed out, to the case of lands so situated that their economic value cannot be realized without subjecting adjoining or neighboring land to some easement amounting to a taking, and does not include the ordinary human activities, which collectively, or in an abstract sense, are advantageous to the community but which in any concrete case may be administered in a private interest; for in such cases, as already shown, the direct public benefit, if any, results from the use, or right of use, by the public. The result of this review of the principles is that the right of eminent domair cannot constitutionally be delegated to a private person or corporation. unless for a use which is governmental in its nature, and unless the public has or can acquire a common right on equal terms to the use or benefit of the property taken; except only that the use, or right of use, by the public, may be dispensed with when a public benefit results from the taking, which cannot otherwise be realized, and which continues to exist although the public has no use or benefit of the property taken."

42 In Burnham v. Thompson (1872) 35 Iowa, 421, a statute authorizing the erection of dams, mills, and other machinery upon watercourses, and providing for the assessment of damages on account of the dams so erected, was held constitutional, and held to apply without restriction as to the kind of mills, i. e., whether or not they were designed to grind grain for toll.

In Fleming v. Hull (1887) 73 Iowa, 598, 35 N. W. 673, the court called attention to the ground for sustaining the early mill statutes, under which land might be flowed for the erection of a dam to create water power for mills and factories, as one of necessity, such power prior to the advent of steam being necessary to provide food and clothing; but it was said that, if such statutes were enacted now for the first time, it is possible, if not probable, that they could not be sustained.

repudiated in that state. And it was held in an early case in Indiana,“ that the taking of land for the purpose of erecting thereon a gristmill, oil mill, carding machine, and woolen factory, was for a public use; the court regarding the other works mentioned, besides the gristmill, as of public utility, and as standing on the same basis, 48 See FERGUSON V. ILLINOIS C. R. Co. (reported herewith) ante, 1.

44 Hankins v. Lawrence (1846) 8 Blackf. (Ind.) 266. It was held, accordingly, that a canal company might be authorized by statute to take land for such works, because they were of public use, on payment of proper compensation, and that the improvements came within the term "hydraulic works," as used in the charter.

45 See cases from this state under III. supra; and Gary v. Much (Ind.) in note 30, supra.

46 In Scudder v. Trenton Delaware Falls Co. (1832) 1 N. J. Eq. 694, 23 Am. Dec. 756, in sustaining a legislative delegation of the power of eminent domain to a corporation for the purpose of creating a water power on which extensive manufacturing establishments might be erected, the court pointed out that the company was under no obligation to let the public participate in the immediate profits of the undertaking, and that if, to establish the improvement as a public benefit, it was indispensable that the public should have the privilege of participating in it directly and immediately, the proposition contended for was not made out. It was said: "Is not this view too narrow? Can public improvements be limited within such a compass? May we not, in considering what shall be deemed a public use and benefit, look at the objects, the purposes, and the results of the undertaking? The water power about to be created will be sufficient for the erection of seventy mills and factories, and other works dependent on such power. It will be located at the seat of government, at the head of tidewater, and in a flourishing and populous district of country. It will be no experiment in a country like ours; and, judging from the results in other places, we may make a sufficiently accurate calculation as to the result here. Take the town of Paterson as an example. The water power there is in the hands of indi

so far as the question before it was concerned. But later decisions in this state have repudiated the theory in general that public use and public benefit are synonymous under the law of eminent domain.45 Similar observations may be made as to the decisions in New Jersey, the court in that state in an early case 46 having adopted the viduals, a company like this. They are under no obligation to lease or sell any mills or privileges to the public; and yet see the result of a few years' operation. Paterson is now the manufacturing emporium of the state, with a population of 8,000 souls. It has increased the value of property in all that district of country, opened a market for the produce of the soil, and given a stimulus to industry of every kind. May we not hope that a similar benefit may be experienced here? Compare this with some other improvements in the state, which, on the principles contended for, are called improvements for public purposes, and for the erection of which a large amount of private property has been taken. Take, for example, one of the oldest and longest turnpike roads in the state the one from New Brunswick to Easton. What public benefit has resulted from that road, compared with the result of the water power on the Passaic? And yet, the road is declared constitutional, because the community may use it by paying toll.

I incline to think the principle sought to be established by the defendants' counsel is too limited; but I do not know that this court can establish a general rule that shall hold good in all cases and be a permanent bar to legislative encroachment. The ever-varying condition of society is constantly presenting new objects of public importance and utility; and what shall be considered a public use or benefit may depend somewhat on the situation and wants of the community for the time being. The great principle remains. There must be a public use or benefit; that is indisputable; but what that shall consist of, or how extensive it shall be to authorize an appropriation of private property, is not easily reducible to general rule. The legislature have thought proper, in their wisdom, to exercise the right of eminent domain, for an object which they deem of public use and importance; and, although