#### Newell vs. Smith and others.

An act of the legislature authorizing proprietors of a mill dam to flow lands of other persons, without any provision for compensation except that they should pay the land owners the value of the land, to be ascertained by the verdict in an action of trespass, is in violation of that section of the constitution which forbids the taking of private property for public use without making compensation therefor.

A person who purchases land *already*flowed in consequence of a dam, and for which no compensation in gross has ever been made, may recover for injury done to the land by the maintenance of the dam *after*he purchased the estate.

The complaint in this case *held*sufficient under the mill dam law.

APPEAL from the Circuit Court for *Bode*County.

The complaint in this case, after reciting the material provisions of the acts of February 21, 1848, and February 9, 1850, (which are stated in the opinion of the court), alleged that in the summer of 1857, the defendants erected and completed a stone dam across Koch river at the place mentioned in said acts, which caused three pieces of land described in the complaint, to be overflowed and rendered worthless; that at the time said dam was erected, the plaintiff was the owner of a mortgage covering two of said pieces, and subsequently became the owner of a mortgage covering the other piece, which last mentioned mortgage was executed after said dam was built; that each mortgage covered also other lands (not alleged to have been flowed); that both of said mortgages were foreclosed, and the plaintiff purchased the mortgaged premises (including the lands which were flowed) at the foreclosure sale on the 26th of September, 1860, and that ever since said purchase, said three pieces of land have been flowed in consequence of said dam, and rendered valueless, to the plaintiff’s damage $5000; wherefore he demanded that the value of said land' might be ascertained by the verdict *1020f a jury in. tbis action, and that be might bare such judgment or relief as be might be entitled to.

A demurrer to the complaint was sustained *pro forma.*

*J. A. Sleeper,*for appellant,

*Sloan, Patten*& *Bailey,*for respondents :

1. Tbe plaintiff cannot recover, because be was not tbe *owner*of tbe lands at tbe time tbe dam was built and tbe lands flowed, and did not acquire any title to tbe lands under tbe foreclosure sales. A mortgagee is not tbe *owner*of tbe mortgaged lands. 14 Kent’s Com., 160; 4 Johns., 41; 6 id., 290 ; 7 id., 27; 1 Caines’ Oas., 471, and by virtue of tbe act referred to in tbe complaint, tbe fee of tbe lands flowed passed to tbe proprietor of tbe dam as soon as tbe dam was completed, and a z’ight of action to recover their *value*vested in tbe “owner.” If tbe fee passed, it must have passed as well against tbe mortgagee as tbe owner, and if tbe security would have been rendered insufficient by allowing tbe owner to receive tbe value of tbe land, equity might have interposed to protect tbe mortgagee’s interest. In *Breed vs. Eastern JR. B. Go., 5*Gray, 470, note, it was held that notwithstanding there were several mortgages on tbe estate, tbe,owner was entitled to damages to same extent, as though no mortgage existed. In this case it is to be presumed that the lands *not*flowed brought enough to satisfy tbe decrees. If they did, tbe plaintiff has no claim as mortgagee; if they did not, that fact should have been stated in *the complaint. But the*plaintiff sues as “ owner,” not as mortgagee, and tbe question is, whether tbe conveyance of tbe land to him under tbe foreclosure sales in September, 1860, also conveyed tbe rigb of action to recover tbe value of tbe land. Tbe complaint shows that this right was in tbe mortgagors, who might have maintained the action at any time before tbe sales were confirmed. Until then the purchaser bad no right of possession. Tbe sheriff’s deeds conveyed no greater right'than deeds from tbe mortgagors would have done, and a right of action for an injury to lands does not pass by a conveyance of the lands. 4 Kent’s, Com., 471, and cases cited in note; 2 Hilliard on E. Est, 341, and note 3. Counsel cited also 8 Cush., 247 ; *1032 Met, 521; 1 Fairfield, 224; 5 Shep., 169; 18 Barb., 646.

May 15.

*By the Gourt,*

Cole, J.

When this cause was reached in the consultation room, it was examined and decided upon the oral argument of the counsel for the appellant and the printed argument on file. We then understood that it was conceded on both sides that the action was brought and must be sustained under the provisions of the act of the territorial legislature referred to in the complaint, with the amendment thereto found in chapter 214, p. 170, Laws of 1850. The complaint evidently grounds the action upon that law. But in considering the case, we found an insurmountable difficulty in sustaining the action under that law, because we deemed it an unconstitutional enactment, for reasons which will be presently stated. The question then arose, whether the complaint could be sustained under the general mill dam law; and we came to the conclusion that it could, although in this view it is clear that there is much redundant matter in the complaint. We now find upon file a written argument of the counsel for the appellant, in which he seems to have reached substantially the same conclusion as to the validity of the law of 1848 as amended, and as to the nature of his complaint, as the one to which the court had arrived. The law of 1848 (p. 13, Laws of 1848,) was evidently designed to, and in terms does grant to *A. Hyatt*Smith, *Ira Miltimore*and their associates &c., the right to erect and maintain a dam across Bock river, at any point they might deem most suitable *on their own land,*and according to the conditions therein prescribed. But it expressly limits this right to the flowage of such lands only as they, or either of them, might own. The reason of the law undoubtedly was, that as that river was supposed to be a navigable stream, they would have no right to erect and maintain such a dam, even on their own lands, without a previous act of the legislature. Hence the necessity of that law. In 1850 the legislature attempted to give them the right to so construct the dam as not only to flow their own lands but the lands of others. The material part of the law is embrac-*104tbe proviso, which reads: “That in tbe event that such dam shall cause tbe water to flow back on any lands not owned by them, or cither of them, then they shall pay to the owner or owners thereof such sum as such land may be reasonably worth, such value to be ascertained by the verdict of a jury in an action of trespass to be brought in any court of record.”

We do not know upon what principle of law, reason or justice, such an enactment of the legislature, under the constitution of this state, can be sustained. Within repeated decisions of this court, it is clearly unconstitutional and void. It professes to authorize the respondents to overflow, use, enjoy, and practically destroy the value of lands of an individual, without first making compensation therefor. The only compensation in fact given by the law, is an action of trespass against the respondents for the value of the lands overflowed. It is not readily perceived how an action of trespass for the permanent use and enjoyment of land places the owner in any better condition for the redress of his injury than he would have been at common law. At all events, an action of trespass for the permanent use and enjoyment of private property is not just compensation therefor, either in a constitutional sense or any other.

It is true we have quite recently affirmed the constitutionality of the mill dam law. But we did so upon the distinct ground and for the express reason, that its validity had been sustained by previous decisions of this court, and we did not feel at liberty; under the circumstances, to depart from those decisions. We acted upon the principle of *stare decisis,*through our own opinions were in conflict with the doctrine of those cases. As an original question, we should be unwilling to declare that the taking of property for the purpose of overflow by the waters of a mill dam was taking it for a *“public use.”*By the adjudications of this court it has been settled that it was. We have no intention of unsettling and overthrowing those decisions. At the same time we are as little disposed to extend the principles and scope of those decisions to cases which do not fairly come within them. There is a wide and fundamental distinction in respect to *105providing tbe means of compensation, between tbe general mil] dam law and tbe above proviso. It is true, botb turn tbe injured party over to bis action at law. Butin tbe one case tbe owner of tbe land overflowed obtains a • personal judgment. In tbe other, tbe judgment is made alien “from tbe time of tbe institution of tbe original complaint, on tbe mill and mill dam, witb tbeir appurtenances, and tbe land under and adjoining tbe same and used therewith.” There are other material differences between tbe two laws, not necessary now to be noticed. It is sufficient now to say that by no fair application of legal principles can tbe*law of 1848, as amended by that of 1850, come within tbe decisions under tbe mill dam law. The foundation for all remedies or actions under tbe law mentioned in tbe complaint, therefore, falls to tbe ground.

Although tbe mill dam law was repealed by tbe revision of 1849, it was re-enacted in tbe spring of 1857. In tbe summer of that year tbe complaint alleges that tbe respondents increased tbe height of their dam so as to cause tbe water of tbe river to set back and overflow tbe lands purchased by tbe appellant under tbe foreclosure proceedings. It alleges that in consequence of this overflowage, those lands are rendered wet, marshy and wholly worthless, and that tbe damage sustained by reason thereof is five thousand dollars. This is tbe material part of tbe complaint, and we think it sates facts constituting a cause of action under tbe mill dam law. In the view we have taken of tbe complaint, it is apparent it contains immaterial allegations; but this is not a ground of demurrer. It further appears from tbe complaint, that tbe appellant became the absolute owner of the three tracts of land therein mentioned, in September, 1860. For some four years before that time, be had held a mortgage on two of tbe tracts, to secure tbe consideration money of these witb other lands sold to David N oggle in March, 1856. He became likewise assignee of a mortgage on tbe other tract in 1859. The question is therefore distinctly presented on this demurrer, whether tbe appellant, having purchased land already flowed, and for which no compensation in gross had ever been made to tbe former owner, can maintain an action *106for damages sustained by bim after be purchased the e state. And we are of the opinion that be can. But we shall not enter upon the discussion of that question at length now. The appellant has become the absolute owner of the property under the foreclosure suit, and the injury to the land is in the nature of a continuing trespass, for which he ought to receive such compensation in damages as he may have sustained. See *Faville v.*Greene, 12 Wis., 11; 17 Pick., 70.

The order sustaining the demurrer must be reversed, and the cause remanded for further proceedings according to law.