Lee v. Pembroke Iron Company. The ruling simply disaffirms a position that a party can justify a direct infringement upon another's property, under an act of the legislature which provides no mode of assessing the damages to the property thus encroached upon. It affirms, that for such direct injury the common-law remedy still remains to the injured party. Such a limitation of the effect of a grant of legislative authority to do a particular act is necessary if we would conform, in their true spirit, to the constitutional provisions that private property shall not be taken for public uses without just compensation, and that every person for injury done him in his * shall have remedy by due course of law.” * * property, * ** It cannot be necessary to waste time or words to establish the proposition that he who assumes, under color of legislative authority, to overflow an ancient mill, "takes" that mill and privilege from the owner as directly and effectually as though he entered upon the premises and demolished the building. The truth of it is self-evident. That a legislative grant of authority to do an act which is the immediate and sole cause of such a destruction of his neighbor's property shall not be so construed as to protect the party doing it from being required in some form to make just compensation, or to preclude the injured party from a remedy by due course of law, is a necessary sequence from the constitutional provisions referred to. In Perry v. Wilson, 7 Mass. 393, where the defendant undertook to justify, as a member and servant of a corporation which was created by statute, for the purpose of "making, laying and maintaining side-booms at convenient places in the Androscoggin river," PARSONS, C. J., in an opinion overruling the justification, and sustaining the plaintiff's action, says: "The legislature might have appropriated the plaintiff's close to public uses without his consent, provided a reasonable compensation had been made him therefor. But in this statute no compensation is provided, nor any means of ascertaining or securing the payment of it declared. If, then, this act was construed to be an appropriation of the plaintiff's lot for the use of the public, such appropriation would be unconstitutional and void." "Therefore," the justification alleged was held insufficient. In Stevens v. Proprietors of Middlesex Canal, 12 Mass. 466, PARKER, C. J., says. "In the declaration of rights prefixed to our constitution, it is provided that private property shall not be taken or ppropriated to public uses without compensation to the owner. So Lee v. Pembroke Iron Company. that, if the legislature should, for public advantage and convenience, authorize any improvement the execution of which would require or produce the destruction or diminution of private property, without affording at the same time means of relief and indemnification, the owner of the property destroyed or injured would undoubtedly have his action at common law against those who should cause the injury, for his damages. For although it might be lawful to do what the legislature should authorize, yet, to enforce the principles of the constitution for the security of private property, it might be necessary to consider such a legislative act as inoperative, so far as t trenched upon the rights of individuals." In Coggswell v. Essex Mill Corporation, 6 Pick. 94, it was held that, where the legislature authorized a corporation to build across a navigable river a mill dam of a given height, and to keep up the same head of water throughout the year, but provided no remedy for any person whose lands should thereby be injuriously flowed, the remedy must be by an action at common law, PARKER, C. J., remarking: What, then, is the remedy, if any one is injured by the execution of the act of the legislature.' An action at common law. The act gives the right to erect the dam in a form supposed to be sufficient to protect from injury the property of the landowners. If it turns out insufficient, they will have an action for the consequent injury." In Thacher v. Dartmouth Bridge Co., 18 Pick. 501, SHAW, C. J., after holding that, if the act of incorporation were to be construed as conferring a power to take private property for public uses without the payment of an adequate indemnity, it would be unconstitutional and void, proceeds as follows: "The consequence would be that the party damaged would be remitted to his remedy at common law; the wrongful act would stand unjustified by legislative grant. This has been so often decided in this commonwealth that it must be taken as a settled principle." The same principle is recognized in Comins v. Bradley, 1 Fairf. 447, WESTON, J., remarking that compensation must be made or provided for when the property is taken. It is upon that condition alone that such taking is authorized." In Crittenden v. Wilson, 5 Cowen, 165, it was decided that an act authorizing one to build a dam on his own land across a river that is a public highway, protects him only against an indictment, and not against the claim of a party whose land is thereby flowed. 1 Lee v. Pembroke Iron Company. The form of the remedy has often been the subject of judicial inquiry; but that the party, whose property has been thus invaded under the sanction of legislative authority, must have some remedy, under the common law, if no statute remedy is furnished or found applicable, has never before now been denied. The cases cited to support the denial will all be found, on exam· ination, to be claims of indirect and consequential damages accruing from the abridgment or subversion of those rights which the party complaining had in common with the rest of the public; a class of rights which, of course, it was competent for the legisla ture, in the exercise of their sovereign power of domain, to surrender or to grant to those who would improve them, whenever it was found to be for the public interest so to do. Such a grant is no infringement upon private property. It is the power of the legislature to control such rights, only, that is asserted in Commonwealth v. Breed, 4 Pick. 460. It was precisely such damages, and such only, that were claimed in Spring v. Russell, 7 Me. 273. So it is also in Parker v. Cutler Mill Dam Co., 20 Me. 353, the case chiefly relied on in defense. The injury to his fishing privileges, and the obstruction to his free access to his land from the sea were the matters of which the plaintiff there complained. The case expressly finds that "no part of his land was flowed." He had no erections of any kind on his premises. He had "a place to build a wharf," but no wharf. If he had a mill site for a tide mill (as one expression in the opinion seems to intimate), it does not appear that he ever had a mill. The defendants, under their act of incorporation, were the first appropriators of the water for milling purposes, and of that he would have no right to complain, even if he was thereby prevented from making a like use of it. See 2 Washb. on Real Prop. 66. In fine, it is only by a perversion of the opinion, and the omission of an important member of the sentence quoted from it, that it can be made to bear the construction which the defendants here seek to give it. The opinion declares that "the corporation is not, therefore, hable for any injury which the plaintiff may have suffered by obstructions to the navigation by altering the flux and reflux of the tide. No private or exclusive rights of Parker had been invaded. II: was not the case of an ancient mill entitled to the flow of the water ut currere solebat. His rights of fishing and navigation were those Lee v. Pembroke Iron Company. which he possessed as one of the public, and these rights were subject to the power of eminent domain, vested in the representatives of the public to whom they belonged. But for the security of private rights in property they are placed beyond the reach of arbitrary specific legislation by the fundamental law of the state, and guarded by constitutional barriers which are always to be carefully regarded. The case of Parker v. The Cutler Mill Dam Co. is not an authority for the doctrine that a legislative grant can afford immunity to a party in the infliction of a direct injury upon private property or vested individual rights. Redress for such injuries the courts have always been ready to afford in some form, though caused by the acts of a company which are authorized by their charter. Thus injuries necessarily caused by a railroad company to adjacent lands or buildings, in the careful exercise of their right of con struction and grading, are to be included in the estimate made by commissioners or jury sitting for that purpose. Whitehouse v. Androscoggin Railroad Co., 52 Me. 208; Dodge v. County Com. of Essex, 3 Met. 380. The provision in the charter, or by general law, of a specific mode of ascertaining and securing proper indemnity, confers no right to damages which did not exist before. Under our constitution the omission to make such provision can take away none but those that pertain to the common privileges that belong to the public, and which the legislature, as guardians of the public weal, have the power to control. Private property-individual rights are preserved without specific mention made of them by virtue of the constitutional guaranties. The legislative authority to do the act which, however carefully done, will naturally result in damage to private property, must be coupled with provisions for ascertaining such damage and securing an indemnity to the injured party, in order to prevent those who act under it from being dealt with at common law as wrong-doers. The legislature has no power under the constitution to make over to any individual or corporation any right save those of the public, without securing a just compensation. It is but just to presume that they have no intention to exceed their powers, and that where no specific mode of ascertaining damages is provided they design to leave the parties to the common-law method of ascertaining them. Lee v. Pembroke Iron Company So if it be said by those who regard form more than substance, words more than the ideas they are designed to express, that the plaintiff's mill was not taken, but only overflowed, it will make no difference. The other constitutional provision, to which referenc has been made, securing to every person, for an injury done him i his property, a remedy by due course of law, must cover the case. The doctrine contended for by the defendants is as novel as it untenable. Exceptions overruled. VOL IL-9 |