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C. E. & A. G. Otis, for respondent, Merchants' Nat. Bank, of St. Paul.

A. B. Matthews and Cole & Bramhall, for appellant, Peter Hanson.

DICKINSON, J. One Luce was doing business individually under the name of "The Bank of Breckenridge." He had several notes payable to himself by name, or by the name of "The Bank of Breckenridge." He indorsed these notes, "Pay G. C. Power, or order, for account and credit Bank of Breckenridge.

[Signed]

E. E. LUCE,"

and sent them to the plaintiff bank with a letter requesting the latter to discount them, and place the proceeds to his credit. The plaintiff retained the notes crediting the Bank of Breckenridge with their amount, less interest to the time of maturity, and advised Luce of their action. The sum so credited was afterward paid. Before the maturity of the notes the plaintiff sent the notes to the Bank of Breckenridge for collectlon, having indorsed them as follows: "Pay Bank of Breckenridge, or order, for collection, account of Merchants' National Bank, St. Paul.

F. A. SEYMOUR, Cashier."

Luce receiving the notes, transferred them by indorsement before their maturity, with the indorsements uncancelled upon them, to the defendant in payment of a precedent debt. The defendant noticed the indorsements when he received the notes, but asked no questions, and appears to have had no notice of the plaintiff's rights respecting the notes, except as it is to be inferred from what has been stated. The defendant having refused to restore the notes to the plaintiff, this action is prosecuted to recover their value.

In First Nat. Bank of Rochester v. Pierson, 24 Minn. 140, this court decided that National banks were not authorized to purchase promissory notes, in the ordinary sense of the word "purchase," the transaction not being a discounting of the paper, or a lending of money upon the credit of it; and the defense of ultra vires was sustained in an action upon a note so pur. chased. Since that decision was rendered the act of Congress upon which it was based has come before the Supreme Court of the United States for construction National Bank v. Matthews, 98 U.S. 621; National Bank v. Whitney, 103 id. 99. The decisions of that court are to the effect that the enforcement in favor of a bank of securities upon real property, which securities the bank had acquired without authority, could not be opposed by the plea of ultra vires, but that it was intended by Congress that the consequences of such violations of law should be only such as might be imposed in proceedings instituted against the bank by the government. This construction of the law of Congress is authoritative, and it is our duty to follow it. In doing so we necessarily overrule Bank v. Pierson, supra, as to the effect of the plea of ultra vires in such cases.

Applying the principle established by these decisions to the case before us, it is not material whether the transaction through which the plaintiff acquired the notes was a purchase of the notes in the ordinary sense of the word "purchase," or a discount of the notes as a loan to the payee. In either case the plaintiff's right as against this defendant would be the same. That the plaintiff acquired the notes either as its absolute property or as security is conclusively shown by the evidence. The defendant claims that the case shows a simple purchase of the notes by the plaintiff. This may be conceded for the purposes of the case. The special verdict of the jury, to the effect that the plaintiff discounted the notes for the benefit of the Bank of Breckenridge, is not inconsistent with their general verdict in favor of the plaintiff, and may be

disregarded without affecting the result. The plaintiff was entitled to recover, unless the defendant is to be deemed as having taken the notes unaffected with notice of the plaintiff's rights. The court declared the indorsements sufficient to charge the defendant with notice of whatever interest the Merchants' National Bank had in the notes, and refused to submit the question of the defendant's bona fides to the jury. Whether this was error is the only remaining question to be considered.

It is well established that negligence on the part of an indorsee of negotiable paper, for value and before maturity, respecting infirmities in the paper or the title to it, will not defeat the title of the purchaser or his right of recovery, unless the circumstances are such as to convict him of mala fides. Goodman v. Harvey, 4 Adol. & E. 870; Goodman v. Simonds, 20 How. 343; Freeman's Nat. Bank v. Savery, 127 Mass. 75, 79; Magee v. Badger, 34 N. Y. 247; Hamilton v. Vought, 34 N. J. L. 187.

We are of the opinion that the case conclusively shows the defendaut to have acquired the notes, not merely negligently, but in bad faith. The indorsements to the Bank of Breckenridge "for collection, account of Merchants' National Bank, St. Paul," upon their face indicated that the latter bank had, or at least claimed to have, the title to the notes, and that the Bank of Breckenridge (Luce) was its agent, with authority merely to collect. Rock Co Bank v. Hollister, 21 Minn. 385; National Bank v. Clark, 23 id. 263. This assertion of title, as borne upon the notes themselves, was so placed as to show that it was presum ably the last indorsement made. It is true, the prior indorsement by the payee to Power, being restrictive, did not show that the payee had parted with his title; but it was not necessary that the payee should have indorsed the notes in order to transfer his title. Pease v. Rush, 2 Minn. 107 (Gil. 89); Foster v. Berkey, 8 Minn. 351 (Gil. 310); Cassidy v. First National Bank, 30 Minn. 86.

If Luce had presented to the defendant notes not thus indorsed, and had stated to him that a St. Paul bauk claimed to own the notes, and had assumed to constitute him, Luce, its agent, to collect them, a purchase of the property from Luce without further explanation, and without inquiry would, if unaffected by other circumstances, be palpably inconsistent with good faith. The case before us not less conclusively charges the defendant with mala fides. Luce assum. ing to transfer the notes in payment of his own preexisting debt, presented them to the defendant bearing indorsements, uncancelled and unexplained, which upon their face indicated that Luce had no right to dispose of the property, but that it belonged to another. Such was the unmistakable import of the indorsements. It was not to be presumed that the indorsements had been wrongfully or surreptitiously placed upon the notes. It was an extraordinary circumstance that Luce, if he was the owner of the paper should, when assuming to dispose of it as his own, suffer such indorsements, impugning his own title, to remain upon the paper unexplained. The defendant noticed the indorsements, but asked no questions. He testified in his own behalf, but no explanation or fact is presented going to oppose the conclusion which should be drawn from the circumstances which we have stated.

The defendant's purpose in acquiring the notes from Luce was, of course, to make collection from the maker for his own benefit. Having express notice by the indorsements that Luce probably did not own the property, but that this plaintiff was the owner, he could not willfully disregard the apparent rights of the plaintiff, and by carefully abstaining from such inquiry as the circumstances suggested, assert the right

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to defeat plaintiff's title under the claim of being an indorsee in good faith. His conduct in disregarding the notice, and forbearing to make inquiries, is inexplicable except upon the assumption that he was regardless of the plaintiff's apparent rights, and willfully abstained from inquiry lest it should confirm the fact of which the indorsements notified him, and he should thus be unable to so acquire the notes that he might protect himself against the plaintiff's superior right. This was not merely negligence concerning his own interests or the rights of others, but mala fides. The proof of such mala fides resting in the circumstances detailed is unopposed by any fact going to support a contrary conclusion, and the court did not err in determining the matter as a conclusion of the law. Jones v. Gordon, L. R., 2 App. Cas. 616; 20 Moak Eng. 127; National Security Bank v. McDonald, 127 Mass. 82; National Bunk of Com. v. Law, 127 id. 72; Fowler v. Brantly, 14 Pet. 318.

The order denying a new trial is affirmed.

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Woolley & Buckner and 0. A. Wehle, for appellants. Elliott & Hemingray, for appellee.

HOLT, J. A paper wholly written by William A. Likefield, and worded as follows, is in question as his last will by this appeal, after having been probated as such by the Jefferson County Court, and its judgment sustained by the Jefferson Court of Common Pleas :

"LOUISVILLE, Jan. 14, 1859.

"If any accident should happen to me that I die from home, my wife, Julia Ann Likefield, shall have every thing I possess, the house and lots and the money that is due to me, and for her to hold it as her

own.

"WM. A. LIKEFIELD."

He died at home on March 28, 1881, leaving the appellee as his widow, but no children, they having previously died. The testimony shows that the decedent, about the date of the above writing, occasionally made steamboat trips upon the Ohio river as a watchman; that he and the appellee lived happily together as husband and wife for over thirty years; that he kept the paper in contest in a small tin box; that in the latter part of the year before his death, and in the presence of his wife, he examined his papers, including it; and after reading it over replaced it in the box and directed her to take care of it.

His brother and sisters and the children of a deceased brother now contend that it was a contingent will, and never became effective, as he died at home; that the words "If any accident should happen to me that I die from home" constitute a condition; while upon the other hand the widow urges that they were only used to give a reason for making the will.

A few general observations may aid in the solution of the question. The rule is that courts will not incline to regard a will as conditional if it can be rea

sonably held that the maker was simply expressing his inducement to make it, however inaccurate the language may be for that purpose if strictly construed; and unless the words clearly show that it was intended to be temporary or contingent it will be upheld. In this instance if the testator, by the words he used, referred to the possibility of his accidentally dying from home as a reason for making the will, then it must be maintained; but if he intended by them to show that he was then making only a temporary or conditional disposition of his property it must fail, because the event named never happened.

An unexpressed intention, however strongly we may suppose it to have existed, cannot be enforced; but upon the other hand, a will cannot be allowed to fail upon slight indications that the testator intended it to be conditional. The end however to be assiduously sought is the intention of the testator; and all rules must be subordinated to it.

A brief review of adjudged cases may also serve to bring us to a proper conclusion, although each case involving the construction of an instrument must necessarily depend upon the particular language used; and we have been unable to find any exactly similar

case.

In Parsons v. Lanoe, 1 Ves. Sr., 190, the words, "If I die before my return from my journey to Ireland," etc., were held to constitute a contingent will, and an inoperative one, because the maker returned home. "In case I die before I join my beloved wife," etc., shared a like fate. Sinclair v. Hone,6 Ves. Jr. 607.

In Todd's Will, 2 W. & S. 145, the testator had in view a certain journey, and the language used was: "My wish, desire and intention now is that if I should not return," etc.; and the will was held to be conditional. Also in Massie v. Griffin, 2 Met. (Ky.) 364, where the will was made while the testator was on a visit in Missouri, and he willed the notes and accounts he held on his brothers to them in case he never returned. Also in The Goods of Robinson, L. R., 2 P. & D., 171, where the words were: "In case any thing should happen to me during the remainder of the voyage from hence to Sicily and back to London, that I give and bequeath," etc.

were:

In Maxwell v. Maxwell, 3 Met. (Ky.) 101, the words "If I never get back home I leave you every thing I have in the world." In this case the testator was away from home when the will was made; he had just escaped from a steamboat disaster; the navigation was peculiarly dangerous at the time, and the necessary continuation of his journey homeward continued the danger; and it was plain from the entire instrument (a letter) that it was intended to be operative only during his absence upon that occasion.

In Dougherty v. Dougherty, 4 Met. (Ky.) 25, the language was: "As I intend starting in a few days to the State of Missouri, and should any thing happen that I should not return alive, my wish is," etc.

It will be noticed in all the above cases and in others not now at hand, where the will has been held to be conditional, that a specific contingency is named, and is either confined to a time certain or a particular event.

In this respect they are clearly distinguishable from the case now presented. The will in this instance fixes no limit or time, as during a particular journey, or for a particular length of time. No specific time or particular event is named. It refers to no particular expected calamity, and the words are general in their character; and this fact leads to the conclusion that the testator, who was evidently not an educated man or an adept in writing such instruments, did not intend the disposition of his estate to depend upon whether he died at or away from his home.

It would have been an absurd condition; and while it is true that he had a right, if he chose to impose it, yet whether it is reasonable in its character can properly be considered when it is a question whether the words were used as a mere reason for executing the paper or as a condition upon which it was to become operative.

It is quite natural for a person to give some reason for making a will; and as has been well said, a "close and literal interpretation may very easily carry us wide of the intention."

Swinburne says: "Albeit the testator make his testament by reason of some great journey, yet it is not revoked by the return of the testator."

Where the words "Lest I should die before the next sun, I make," etc., were used in a will written eighteen years before the testator's death, it was upheld. Burton v. Collingwood, 4 Hagg. Eccles. 176.

So "In case I should die on my travels," etc., although the testator returned home, it being shown that he recognized the paper as his will shortly before his death. Strauss v. Schmidt, 3 Phill. 209.

In Re Tylden, 18 Jur. 136, the language of the will was: "If it please Almighty God to call me suddenly from this mortal life, and during my absence from home, I leave," etc.; and it was sustained, although the testator died at home.

So in Re Dobson, L. R. 1 P. & D., 88, where the words were: "In case of any fatal accident happening to me, being about to travel by railway, I hereby leave," etc. Also in Thorne's case, 4 Sw. & Tr., 436, the language being: "I request that in the event of my death while serving in this horrid climate, or any accident happening to me, I bequeath," etc.

In the case of Bradford's Adm'x v. Bradford, etc., 81 Ky., the language of the will was of a more conditional character than in this instance, to wit.: "Being in the full possession of all my mental faculties, but in feeble health, and about to start on a long journey, and subject to the common casualties of others, I deem it prudent to provide for the disposition of my property in case I should not return;" and it was held that it was not contingent, and although the testator returned home and lived for several days thereafter, yet it was sustained.

It is shown in this case that the testator carefully preserved the paper in contest; that he examined it the year prior to his death; and while these facts cannot constitute a statutory republication of it, yet they illustrate the intention of the maker of the instrument, as they tend to show that he believed he had disposed of his property by it; aud while the word "if "is an apt one to express a condition, yet the language used is so general in its character that it shows the testator intended it as words of inducement to the making of the will only, and not that the disposition of his property should depend merely upon the place of his death. Judgment affirmed.

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N error to the Supreme Court of the State of New Hampshire. The opinion states the case.

C. R. Morrison, for plaintiff in error.

George F. Hoar and B. Wadleigh, for defendant in

error.

GRAY, J. This was a writ of error to reverse a judgment of the Supreme Court of the State of New Hampshire against the plaintiff in error, upon a petition filed by the defendant in error (a corporation established by the laws of New Hampshire for the manufacture of cotton, woolen, iron and other materials) for the assessment of damages for the flowing of his land by its mill-dam at Amoskeag Falls, on the Merrimack river, under the general mill act of that State of 1868, ch. 20.

In the petition filed in the State court the Amoskeag Manufacturing Company alleged that it had been authorized by its charter to purchase and hold real estate, and to erect thereon such dams, canals, mills, buildings, machines and works as it might deem necessary or useful in carrying on its manufactures aud business; that it had purchased the land on both sides of the Merrimack river at Amoskeag Falls, including the river and falls, and had there built mills, dug canals, and established works, at a cost of several mil. lions of dollars, and for the purpose of making the whole power of the river at the falls available for the use of those mills, had constructed a dam across the river; that the construction of the mills aud dam, to raise the water for working the mills, for creating a reservoir of water, and for equalizing its flow, was of public use and benefit to the people of the State, and necessary for the use of the mills for which it was designed; and that Head, the owner of a tract of land described in the petition, and bounded by the river, claimed damages for the overflowing thereof by the dam, which the corporation had been unable satisfactorily to adjust; and prayed that it might be determined whether the construction of the mills and dam, and the flowing, if any, of Head's land to the depth and extent that it might or could be flowed thereby, were or might be of public use or benefit to the people of the State, and whether they were necessary for the mills, and that damages, past or future, to the land by the construction of the dam might be assessed accord. ing to the statute.

At successive stages of the proceedings, by demurrer, by request to the court after the introduction of the evidence upon a trial by jury, and by motion in arrest of judgment, Head objected that the statute was unconstitutional, and that the petition could not be maintained, because they contemplated the taking of his property for private use, in violation of the fourteenth amendment of the Constitution of the United States, which declares that no State shall deprive any person of property without due process of law, nor deuy to any person within its jurisdiction the equal protection of the laws; as well as in violation of the Constitution of the State, the bill of rights of which declares that all men have certain natural, essential and inherent rights, among which are the acquiring, possessing and protecting property, and that every member of the community has a right to be protected in the enjoyment of his property. His objections were overruled by the highest court of New Hampshire, and final judgment was entered adjudging that the facts alleged in the petition were true, and that upon payment or tender of the damages assessed by the verdict, with interest, and fifty per cent added, making in all the sum of $572.43, the company have the right to erect and maintain the dam, and to flow his land forever to the depth and extent to which it might or could be flowed or injured thereby. 56 N. H. 386, and 59 id. 332, 503.

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The position that the plaintiff in error has been denied the equal protection of the laws was not insisted upon at the argument. The single question presented for decision is whether he has been deprived of his property without due process of law, in violation of the fourteenth amendment of the Constitution of the United States. It is only as bearing upon that question that this court, upon a writ of error to a State court, has jurisdiction to consider whether the statute conforms to the Constitution of the State. The charter of the Amoskeag Manufacturing Company, which authorized it to erect and maintain its mills and dam, gave it no right to flow the lauds of others. Eastman v. Amoskeag Manufacturing Co., 44 N. H. 143. The proceedings in the State court were had under the general mill act of New Hampshire, which enacts that any person or any corporation authorized by its charter so to do may erect or maintain on his or its own laud a water-mill and mill-dam upon any stream not navigable, paying to the owners of lands flowed the damages which, upon a petition filed in court by either party, may be assessed by a committee or by a jury for the flowing of the lands to the depth and extent to which they may or can be flowed by the dam. N. H. St. 1868, ch. 20.

The plaintiff in error contends that his property has been taken by the State of New Hampshire for private use, and that any taking of private property for private use is without due process of law.

The defendant in error contends that the raising of a water-power upon a running stream for manufacturing purposes is a public use; that the statute is a constitutional regulation of the rights of riparian owners, and that the remedy given by the statute is due process of law. General mill acts exist in a great majority of the States of the Union. Such acts, authorizing lands to be taken or flowed in invitum, for the erection and maintenance of mills, existed in Virginia, Maryland, Delaware and North Carolina, as well as in Massachusetts, New Hampshire, and Rhode Island, before the declaration of independence; and exist at this day in each of these States, except Maryland, where they were repealed in 1832. One passed in North Carolina in 1777 has remained upon the statute book of Tennessee. They were enacted in Maine, Kentucky, Missouri and Arkansas soon after their admission into the Union. They were passed in Indi ana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, Minnesota, Mississippi, Alabama and Florida while they were yet Territories, and re-enacted after they became States. They were also enacted in Pennsylvania in 1803, in Connecticut in 1864, and more recently in Vermont, Kansas, Oregon, West Virginia and Georgia, but were afterward repealed in Georgia.

[Omitting references to State statutes.]

In most of those States their validity has been assumed without dispute, and they were never adjudged

to be invalid anywhere until since 1870, and theu in three States only, and for incompatibility with their respective Constitutions. Loughbridge v. Harris, 42 Ga. 500; Tyler v. Beacher, 44 Vt. 648; S. C., 8 Am. Rep. 398; Ryerson v. Brown, 35 Mich. 333; S. C., 24 Am. Rep. 561. The earlier cases in Tennessee, Alabama and New York containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerg. 41; Memphis City R. Co. v. Memphis, 4 Cold. 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 id. 288; Hay v. Cohoes Co., 3 Barb. 42, 47, and 2 N. Y. 159. The principal objects no doubt of the earlier acts were grist-mills, and it has been generally admitted, even by those courts which have entertained the most restricted view of the legislative power, that a grist-mill which grinds for all comers at tolls fixed by law is for public use. See also Blair v. Cuming Co., 111 U. S. 363. 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. Mass. St. 1824, ch. 153; Wolcott Woolen Manufacturing Co. v. Upham, 5 Pick. 292; Palmer Co. v. Ferrill, 17 id. 58, 65. And throughout New England, as well as in Pennsylvania, Virginia, North 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 use. Scudder v. Trenton Delaware Falls Co., Saxt. 694, 728, 729; Boston & R. Mill Corp. v. Newman, 12 Pick. 467: Hazen v. Essex Co., 12 Cush. 475; Com. v. Essex Co., 13 Gray, 239, 251, 252; Hankins v. Lawrence, 8 Blackf. 266; Great Falls Manufg Co. v. Fernald, 47 N. H. 444. 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 laud 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. See also Holyoke Co. v. Lyman, 15 Wall. 500, 506, 507; Beekman v. Saratoga & S. R. Co., 3 Paige, 45, 73; Talbot v. Hudson, 16 Gray, 417, 426. And the validity of general mill acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions. Jordan v. Woodward, 40 Me. 317; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 id. 78; Venard v. Cross, 8. Kan. 248; Harding v. Funk, id. 315; Miller v. Troost, 14 Minn. 365 (Gil. 282); Newcomb v. Smith, 1 Chand. 71 (2 Pin. 131); Fisher v. Horicon Co., 10 Wis. 351; Babb v. Mackey, id. 371; Burnham v. Thompson, 35 Iowa, 421.

In New Hampshire, from which the present case comes, the Legislature of the province in 1718 passed an act (for the most part copied from the Massachusetts act of 1714) authorizing the owners of mills to flow lands of others, paying damages assessed by a jury. The act of 1718 continued in force until the adoption of the Constitution of the State in 1784, and afterward until June 20, 1792, and was then repealed, upon a general revision of the statutes, shortly before the State Constitution of 1792 took effect. The provisions of the bill of rights, on which the plaintiff in error relied in the court below, were exactly alike in the two Constitutions. Special acts, authorizing the flowing of lands upon the payment of damages, were passed afterward from time to time; among others, the statute of July 8, 1862, authorizing the Great Falls Manufacturing Company to erect a dam upon Salmon Falls river, which was adjudged by the Supreme Judicial Court of New Hampshire in 1867, in an opinion delivered by Chief Justice Perley, to be consistent with the Constitution of that State, because the taking authorized was for a public use. Great Falls Manufg Co. v. Fernald, 47 N. H. 444. The statute now in question, the first general mill act passed by the Legislature of the State, was passed and took effect on July 3, 1868; was held in Ash v. Cummings, 50 N. H. 591, after elaborate argument against it, to be constitutional, upon the ground of the decision in Great Falls Manuf'g Co. v. Fernald, and was enforced without question in Pollard v. Moore, 51 N. H. 188, and in Town v. Faulkner, 56 id. 255. In the case at bar, and in another case siuce, the State court held its constitutiouality to be settled by the former decisions. Amoskeag Manufg

Co. v. Head, 56 N. H. 386, and 59 id. 332, 563; Same v.
Worcester, 60 id.522.

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 régulating 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 his beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified.

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proportion to the benefits received, have been often upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Burt, 22 Pick. 422; Wright v. Boston, 9 Cush. 233, 241; Sherman v. Tobey, 3 Allen, 7; Lowell v. Boston, 111 Mass. 454, 469; French v. Kirkland, 1 Paige, 117; People v. Brooklyn, 4 N. Y. 419, 438; Coster v. Tide-Water Co., 3 C. E. Green, 54, 68, 518, 531; O'Reilly v. Kankakee Valley Draining Co., 32 Ind. 169.

By the maritime law, based, as Lord Tenterden observed, on the consideration that the actual employment of ships is "a matter, not merely of private advantage to the owners, but of public benefit to the State," and recoguized in the decisions and the rules of this court, courts of admiralty may, when the part owners of a ship cannot agree upon her employment, authorize the majority to send her to sea, on giving security to the dissenting minority to bring back and restore the ship, or if she be lost to pay them the value of their shares; and in such case the minority can neither recover part of the profits of the voyage nor compensation for the use of the ship. Abb. Shipp., pt. 1, ch. 3, §§ 2, 3; The Orleans, 11 Pet. 175, 183; Rule 20, in admiralty, 3 How. 7; The Marengo, 1 Low. 52. If the part owners are equally divided in opinion upon the manner of employing the ship, then according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Am. Jur. 486; S. C., 3 Wall., Jr., 395. See also Story Partn.. § 439; The Nelly Schneider, 3 Prob. Div. 152; S. C., 32 Moak Eng. 76.

In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition, upon which the court, if the land cannot be equally divided, will order owelty to be paid, or in many States, under statutes the constitutionality of which has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money, or else order the whole estate to be sold. King v. Reed, 11 Gray, 490; Bentley v. Long Dock Co., 1 McCart. 480; S. C., on appeal, nom. Manners v. Bentley, 2 id. 501; Mead v. Mitchell, 17 N. Y. 210; Richardson v. Monson, 23 Conu. 94. Water rights held in common, incapable of parti-and-common to all the proprietors of the bed and tion at law, may be the subject of partition in equity, either by apportioning the time and extent of use, or by a sale of the right and a division of the proceeds. Smith v. Smith, 10 Paige, 470; De Witt v. Harvey, 4 Gray, 486; McGillivray v. Evans, 27 Cal. 92.

At the common law, as Lord Coke tells us, "if two tenants in common, or joint tenants, be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda; and the writ saith, ad reparationem et sustentationem ejusdem | domus teneantur; whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men.' Co. Litt. 200 b; 4 Kent Comm. 370.

In the same spirit the statutes of Massachusetts for 175 years have provided that any tenant in common of a mill in need of repair may notify a general meeting of all the owners for consultation, and that if any one refuses to attend, or to agree with the majority, or to pay his share, the majority may cause the repairs to be made, and recover his share of the expenses out of the mill or its profits or earnings. Mass. Prov. St. 1709, ch. 3, 1 Prov. Laws (State ed.), 641, and Anc. Chart. 388; St. 1795, ch. 74, §§ 5-7; Rev. St. 1836, ch. 116, §§ 44-58; Gen. St. 1860, ch. 149, §§ 53-64; Pub. St. 1882, ch. 190, §§ 59-70. And the statutes of New Hampshire for more than eighty years have made provisions for compelling the repair of mills in such cases. Roberts v. Peavey, 7 Fost. 477, 403.

The statutes which have long existed in many States authorizing the majority of the owners in severalty of adjacent meadow or swamp lauds to have commissioners appointed to drain and improve the whole tract by outting ditches or otherwise, and to assess and levy the amount of the expense upon all the proprietors in

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But none of the cases thus put by way of illustration so strongly call for the interposition of the law as the case before us.

The right to the use of running water is publici juris,

banks of the stream from its source to its outlet. Each has aright to the reasonable use of the water as it flows past his land, not interfering with a like reasonable use by those above or below him. One reasonable use of the water is the use of the power inherent in the fall of the stream and the force of the current to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus dammed up by one riparian proprietor spread over the lands of others, they could at common law bring successive actions against him for the injury so done them, or even have the dam abated. Before the mill act therefore it was often impossible for a riparian proprietor to use the waterpower at all without the consent of those above him. The purpose of these statutes is to enable any riparian proprietor to erect a mill and use the water-power of the stream, provided he does not interfere with an earlier exercise by another of a like right, or with any right, of the public; and to substitute, for the common-law remedies of repeated actions for damages and prostration of the dam, a new form of remedy, by which any one whose land is flowed can have assessed, once for all, either in a gross sum or by way of annual damages, adequate compensation for the injury.

This view of the principle upon which general mill acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the Supreme Judicial Court of Massachusetts.

In delivering the opinion of the court in a case decided in 1832 he said: "The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the provincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil; and in

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