dissent">Judge Brush

dissented:

A majority of the court are of opinion that the complainants' have not made a case that warrants the interference of the court, in their behalf, to restrain the action and discretion of the agont of the state in the matter complained of. My mind has been conducted to a different conclusion. In assigning the reasons which influence my judgment, I do not purpose to answer the positions taken in support of the opposite opinion. I shall content myself with stating the case, as I understand it, and with explaining the-principles of law by which I conceive the rights and the.remedy of the complainants ought to do governed.

The material facts are:

First. The Miami canal has been constructed under the authority of law, from Dayton, on the G-reat Miami, to Cincinnati.

Second. The complainants, by descent from their father, *at the time of the construction of the canal, owned a body of land adjoining the town of Dayton, through a part of which Mad river flowed, the water of which had been appropriated and employed, by the proprietor, for many years, in propelling grist and sawmills, and factories of different descriptions, which were owned, and continued to be carried on, by complainants.

Third. In February, 1825, the canal was located. The plan required the water to be supplied from Mad river by a feeder, the course of which, with that of the canal and a basin, was settled upon and decided. Upon this plan the whole work was subsequently constructed and completed. The water was taken from Mad river, into the feeder, above the lands of the complainants upon the lands of the next adjacent proprietor, and above the dam from which they took the water for their own use. It was conducted through the adjacent tract into the lands of the complainants, and into the vicinity of their different water-works, and in such position as to be conveniently and safely used in aid of those works, and returned into the basin at the head of the canal.

Fourth. Before the water of Mad river was taken for the feeder there was an abundant supply for all the establishments of the complainants then in operation. But since the water has been used for the feeder there has been a deficiency of water, for the same operations, to an extent considerably injurious to these establishments.

Fifth. Subsequently to the completion of the canal some in*264dividuals, owning land on the side of the feeder, opposite to the town of Dayton, constructed a canal, with a view to private profit, for which a supply of water could only be obtained from the feeder at a proper point. At this point the board of canal commissioners purchased a piece of land, lying upon both sides of the feeder, for the purpose of disposing of the water power of the canal for the benefit of the state. The respondent, as acting canal commissioner, in conformity with the law, advertised the sale of the water. The place where the water thus to be sold was to be used was so arranged that the water, after having been used, would flow into the new canal, and pass through it into the pub-lie canal, at a considerable distance below the *town of Dayton, and would be diverted from its course in the public feeder through the lands of the complainants to the lands of the constructors of the new canal. It is to prevent this sale and diversion of the water that the bill is filed and the injunction asked. It was allowed by the court of common pleas, and comes here upon an appeal. .

Before the location of the canal and basin, in 1825, the complainants were invested with a complete and perfect right to the use of the water of Mad river, for any purpose that it could be used upon their own lands. This right was subject to no other restriction, but that they should not flow it back upon the proprietor above them, and that they should return it into the bed of the river for the use of the proprietor below them. 2 Johns. Oh. 164. The state, in its sovereign capacity, had no right to any portion of it. In the .exercise of its sovereignty it could take it from the actual owner for an object of public character and of public utility. But this assumption of private property can not be made for the use of the government. It can only be made for the use and benefit of the people; for that description of use which every citizen may enjoy in the same manner and upon the same terms. It is this kind of use that constitutes the “public welfare,” which I conceive to be distinct from government interest, profit, or con-' cern. It is only this great and common benefit to all the people .alike that creates a necessity authorizing and justifying the seizure, by the government, of the private property of individuals. It is the people’s prerogative, exists in the social compact, and is founded in the maxim, “ salus populi suprema est lex." The terms in which our constitution recognizes the principle, private prop*265erty is “ always subservient to the public welfare,” excludes its assumption or use in any other way, or for any other object or pur■pose whatever.

However enlarged and liberal the exercise of this prerogative, by the sovereign power may be, or ought to be held, it must have some limit. It will hardly be maintained, by the wildest adventurer for power, that the state- may, at pleasure, assume to itself the franchise, or other rights or interests of individuals, to improve and dispose of them for the purposes of revenue. The •sovereign may take that, ^without which he can not promote the general welfare, in the sense I understand it, and no more. And even this power would be without limit, or the limit of no avail, unless the line can be drawn with such certainty as to become a rule, capable of illustration, and of being so stated that all, who are subject to it, may understand it.

In the case before us, the legislature seems to have understood this doctrine as I do, and they have attempted the definition in authorizing the assumption of private property for the great “public welfare ” of constructing the canal. The public agents are authorized to “seize and take” what is required for the public use, “ doing no.unnecessary damage.” .What does this mean, when reduced to a rule applicable to the case before the court? It seems to be plainly this: You may take from the complainants the use of their water necessary for the safe and secure navigation of the canal. But if consistent with this use, in the location where you have resolved to use it, a beneficial interest may still remain in them; you shall not deprive them of it. To do so is damaging them unnecessarily. To sell the water for government profit, in aid of the revenue, is to seize the complainants’ property, not for the common use of all, in the same manner and upon the same terms, but is, in fact, fastening a burden of taxation upon one, which ought to be enforced equally upon all. This inequality of burdens is not necessary for the purposes of navigation, the great and principal object of the canal, and it is illegal if imposed for any other purpose.

I do not perceive how the case is affected by the position that the canal commissioners are clothed with the exercise of a sound discretion. The law certainly does not, and, indeed, under our constitution, could not, constitute them exclusive judges of what would be a sound discretion. That appertains to the judicial •tribunals of the country. They alone can establish and apply tha *266rule of right, where individuals are concerned. Where public-agents are about to transcend the legal limits of their authority, courts of equity adjudicate upon the matter, and enjoin their ir regularities if necessary. In the case of Shawd v. Aberdeen Canal Commissioners, 2 Dow. 519, Lord Eldon said : “ If the canal commissioners ^exceeded their powers, they became trespassers, but chancery would restrain them by injunction, and keep-them strictly within the limits of their powers.”

In a still later case, an injunction was granted, in England, restraining defendants, acting under a private act of Parliament, from cutting a canal through land of the complainant in a manner not supposed to be within the equity of the statute. Cooper’s Equity, 77.

Chancellor Kent cites these cases with approbation, 2 Johns. Ch. 168, 473, and admits that the complainant might have lain by and rested on his legal rights, and then brought trespass; but be was also at liberty to come into chancery, in the first instance, for a preventive remedy, and if there was any dispute as to the fact which course the complainant ought to pursue, chancery would direct an issue. It is a question of power, however an attempt may be made to confound its exercise with a sound discretion. In such a case, I believe it the safest rule, and the one most conformable to principle, and the letter and spirit of our constitution, to endeavor to ascertain the exact line of right, and then adopt Lord Mansfield’s maxim, 11 fiat justitia ruat cmluni.”

The discretion confided to the canal commissioners by law is to assume private property for constructing the canal, and making it navigable. For these purposes, a necessity arises within the meaning of the terms “ public welfare.” But is there any public necessity for the sale of the water power in question? Such a sale does not aid the navigation. It only aids the state revenue. If made, will it lessen the value of the property of the complainants? I can not entertain a doubt upon these matters. ,The proposed sale of water power is not necessary to the “ public welfare,” and it must operate very injuriously to the complainants. If doubt pressed upon my mind , still I should incline strongly to fix the strictest limit upon the governmental prerogative of assuming private property for public use, taking care that the great object of the canal, its safe navigation, should not be defeated, or its benefits impaired. This navigation is, in my opinion, the only legiti*267mate object of the canal. So far, therefore, as any advantage to-the state, or to its revenues, may be contemplated by this sale of water power to the ^prejudice of private right, I think the strictest rule should be applied. I think, too, that in the case before us, the contemplated sale of water power is a sheer state-speculation at the expense of the complainants.

It is objected that the state, having assumed the water, is under no legal obligation to permit, or dispose of the use of it to any one. Consequently, it may be conducted in the feeder, through complainants’ lands, and the use of it refused to them with impunity. This point is not now before the court, but, in respect to it, it may be remarked, that possibly a court of equity might deem itself authorized to compel the agents of the state to allow the complainants to use the surplus water on their own lands, taking care that such use should never prejudice the secure and easy navigation of the canal.

From the best view I can take of the case before us, its turning point seems to be this: May the respondent, as a public agent, for the purpose of aiding the public revenue, do as he pleases with the water, however much his doings may prejudice the individual rights and interests of the complainants ? My response is, “1 am-unwilling.” Such, I think, ought to be the response of the laws and judicial tribunals of the country.

The converse argument runs thus: The canal eommissionershave the right, that is, the power, to take the water out of Mad river, and conduct it, by a feeder, to the canal, for the purpose of navigation. Having it in motion, on the way to the canal, they may put it into market to raise revenue for the state, without any regard to the individual interests and rights of those who owned the use of the water before it was introduced into the feeder. I can not allow this. The discretion of all public agents, especially in the assumption of private property for public use, must be brought to the test of legal judgment. It must be controlled by some limit, and subjected to some rule. The application of that rule belongs-to the judicial tribunals. They settle the bounds of official discretion, which has a continual tendency to encroach upon private-rights. It is their province to arrest the exercise of that discretion, when it oversteps the requisitions necessary for the “publie. welfare.” In this light, the proposed *sale of water presents itself to my mind, and I would prohibit it. If any given quantity- *268• of water can be taken from the feeder, and returned to the canal, without injury to the navigation, the only legitimate object of state appropriation, I conceive it should be left with the original owners, whose right is the oldest, the best, and ought to be exclusively ■ enjoyed.

Citation profile

Relationships

How this case has been treated — in progress