#### The Boston and Roxbury Mill Corporation *versus*James Newman.

The construction of dams by a corporation, in order to obtain a head and fall of the waters of a navigable arm of the sea, whereby to work grist-mills and mills for other useful purposes, and also to make a highway over the dams for the accommodation of all passengers for a fixed rate of toll, is an enterprise so far of a public nature as to authorize the legislature to appropriate the property of an individual to carry it into effect, pursuant to the 10th article of the Declaration of Rights. Where the corporation was constitutionally authorized by the legislature to create such water power by penning up the tide waters in a full basin and excluding them from another basin which was to receive the water through race-ways from the full basin, it was, *held,*that the owner of flats in the receiving basin had no right to raise his land, whereby the capacity of the receiving basin, and conse quently the water-power, would be diminished.

A clause in the act of incorporation, that any person sustaining any damage by the building of the dams, &c. or from the exercise of any of the rights and powers given to the corporation, might apply, within one year from the time any such damage may have happened, to the Court of Common Pleas for a committee, and ultimately for a jury, to estimate the damage, and where a damage is annual, so to declare the same, &c. was *held,*to be a reasonable provision for compensation to a party whose property should be appropriated by the corporation, and therefore the act of incorporation was not unconstitutional in this respect.

The injury to the owner of flats land in such receiving basin takes place when the tide waters 'are excluded from the basin, he being then debarred from the beneficial use of his land, and he is then entitled to claim compensation for the damage occasioned to his land by the easement which the corporation have thus acquired.

This was an action on the case against the defendant, foi obstructing the plaintiffs’ grist mill. The parties stated a case for the opinion of the Court.

The plaintiffs were duly organized under their act of incorporation, dated June 14, 1814 ; which act, and all others touching the subject of their incorporation or other rights, were in the case.

All votes of the town and city of Boston, reports of the legislature, remonstrances and petitions to the legislature or to the town or city of Boston, were to be considered as in the case, if the Court should adjudge them to be competent evidence.

The act of incorporation provides, in § 1, that the corporation may purchase and hold real and personal estate, (not exceeding in value two millions of dollars,) necessary to promote the objects of the corporation.

*473It further provides (§ 2,) that the corporation shall have power to build a dam from Charles Street, at the westerly end of Beacon Street, in Boston, to the upland at Sewall’s Point, in Brookline, which dam shall not be less than forty-two feet wide on the top, and made so as effectually to exclude the tide water, and to. form a reservoir or empty basin of the space between the dam and Boston Neck ; and shall have power to build a dam from Boston to South Boston, with gates, sluiceways and other things necessary to admit and detain the tide water between this dam and Boston Neck, at the height of common tides ; and shall make in this dam a lock for the passage of rafts, boats, &c. ; and may run a dam from Gravelly Point in Roxbury, to the dam first described, so as to inclose the tide water within Tide-mill creek, and may connect the same with the full basin on the east, by a canal, at least one hundred feet wide, and boats and other things may pass and repass in the canal, at all times, free of toll ; and if the corporation shall fail, for the space of three years from the passing of the act, to secure the tide waters within Tide-mill creek, and to connect the creek to the full basin on the east, the legislature may compel the execution thereof, under such penalties and forfeitures as it may think proper to impose ; and the corporation may cut any number of convenient race-ways from the full basin to the empty basin ; and may lease or sell the right of using the water, upon any terms and in any manner they may think proper.

By § 3, and an additional act passed June 19, 1816, the corporation are authorized to finish the dam first mentioned, so as to render it a good road, suitable for the passing of carriages, &c. and to receive a fixed toll of persons passing over it, whenever it shall be completed and whenever either of the other dams shall be so far completed, as that mills can be established, employing a power equal to turning twenty pair of common mill stones, and the corporation, or its assigns, shall have actually erected mills employing a power equal to ten pair of common mill stones.

By § 4, the corporation shall be entitled to all the benefits of the engagements of the town of Boston with the petitioners for the act of incorporation, as the same are expressed in the *474doings of the town at its meetings of June 11 and Cctooer 20, 1813.

By § 6, it is enacted, “ that any person or corporation, sustaining any damage by the building of said dams, bridges or causeways, or from cutting said canal or race-ways, or from the exercise of any of the rights and powers herein given to said corporation, may apply (if within one year from the time any such damage may have happened) to the Court of Common Pleas for the county in which the land lies, for a committee to be appointed to estimate the damage.” The committee appointed pursuant to this section, are first to inquire, “whether any damage has been sustained from the causes aforesaid, and if any, they shall estimate the same, and where the damage is annual, they shall so declare the same in their report.” This section then makes provision for the return of the report to the Court of Common Pleas, and for a trial by a jury in case either party shall be dissatisfied with the report.

The stipulations contained in the engagements of the town of Boston, referred to above in § 4, were not complied with on the part of the plaintiffs, .and their counsel conceded that they were not entitled to the benefit of those engagements. The claims of the town and of some of the abutters on the empty basin, conflicting with those of the corporation, were recently settled by a compromise, to which however the defendant was not a party.

At the time when the act of incorporation was granted, the Commonwealth owned a large extent of flats and channels between the first mentioned dam and Boston Neck, but the capacity of the empty basin as claimed by the plaintiffs, would be much diminished if limited to the flats and channels so owned by the Commonwealth.

The defendant erected a dwellinghouse, and for that purpose placed earth and stones upon land admitted (so far as regards this action) to be owned by him in fee, and within that part of the empty basin claimed by the plaintiffs, which would be useful for the mills when the whole power should be m operation.

The wheels of the grist-mill belonging to the plaintiffs, were, before any obstruction was placed in the empty basin by the *475defendant, impeded in some degree at neap tides, and the earth and stones placed there by him did in some degree, though not capable of accurate measurement, increase the difficulty and occasion some damage to the plaintiffs ; which it was agreed should be estimated at one dollar.

Since the plaintiffs were incorporated and before the act complained of in the writ, they have by voluntary compact, for a valuable consideration, made an arrangement with some of the owners of flats within the empty basin, by which such owners are authorized to fill up considerable portions of the basin, whereby its capacity for receiving water flowing from the mills would be essentially diminished, some of which owners have built upon their flats pursuant to the agreement, by which the actual capacity of the basin has been diminished, but not in so great a degree as to admit of any precise estimate of its present effect upon the plaintiffs’ mill power. The defendant’s doings, however, would have impeded, in the same manner as at present, the use of the plaintiffs’ mill power, if this compact had not existed and the acts done under it had not occurred.

If upon these facts the Court should be of opinion that the plaintiffs were entitled to recover, judgment was to be rendered for the plaintiffs, and damages to be assessed at one dollar ; otherwise the plaintiffs were to become nonsuit.

*Gorham*and *C. G. Loring*for the plaintiffs.

The first question is, whether the legislature had constitutional power to grant to the plaintiffs the right of using the defendant’s flats as a part of their reservoir or empty basin, for the purposes mentioned in their act of incorporation and upon the terms therein prescribed.

The 10th article of the Declaration of Rights, in which it is said that “ whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation,” has been practically construed to authorize the legislature to transfer the property of one individual to another individual or corporation, whenever the public convenience and necessity require it, although the moving cause for the application for such a transfer is usually the private emolument of the individual or *476corporation. This construction has been adopted in the grant of turnpike roads, canals and toll bridges, which for the most part are private property, though the public makes use of them. *Dartmouth College*v. *Woodward, 4*Wheat. 669; *Bradshaw*v. *Rodgers,*20 Johns. R. 105. But the course of legislation in this Commonwealth, on the subject of mills, is perhaps more analogous to the case before the Court. From a remote period in our history down to the present time, the legislature have exercised the power of subjecting lands of individuals to be overflowed for the purpose of creating a head of water to drive mills belonging to other individuals. Anc. Charters, &c. 404 ; *St.*1795, c. 74. And the constitutionality of such statutes has been recognized by this Court. *Stowell*v. *Flagg,*11 Mass. R. 365; *Wolcott W. Man. Co.*v. *Upham,*5 Pick. 292. If it is objected that those statutes are general, but that the one now in question is made for a particular case, it may be replied, that the same objection would apply to acts granting the privilege of making turnpike roads, canals, &c. and to many other cases in which the legislature have passed private acts for the public good, the constitutionality of which has never been called in question. The mill acts are regulations of private property, though general in their terms. The ground of them is, that the legislature will not permit an individual, from caprice or obstinacy, to withstand the development of great natural advantages ; and the security to the public against the abuse of legislative power, is, that this Court will take care that a party is paid for the property taken from him under such enactments of the legislature. *Bealey v. Shaw,*6 East, 215 ; *Gardner*v. *Mewburgh,*2 Johns. Ch. R. 162 ; *Vinton*v. *Welsh,*9 Pick. 87 ; *Lansing*v. *Smith,*8 Cowen, 146 ; *Willson*v. *The Blackbird Creek Marsh Co.*2 Peters’s Sup. C. R. 251 ; *Perry*v. *Wilson,*7 Mass. R. 395 ; *Stevens*v. *Middlesex Canal,*12 Mass. R. 466 ; *St.*1806, c. 4; *St.*1806, *c.*24 ; *St.*1806, c. 59 ; *St.*1794, *c.*55, § 1, compared with *St.*1803, *c.*35 ; Act of January 13, 1755, 3 Spec. Laws, Appendix, 30 ; of March 20, 1767, ibid. 31 ; of March 5, 1768, ibid. 32 ; of April 6, 1745, ibid. 34. The legislature are to judge .of the public exigency, at least in the first instance. *Charles**477*River Bridge*v. *Warren*Bridge, 7 Pick. 453, 476, 500, 528 ; *Commonwealth*v. Breed, 4 Pick. 460. The act now under consideration provides for roads, a canal, and mill powers ; so that three of the objects are promoted, to which the legislative power has in the same manner been heretofore applied. A sufficient indemnity was provided for the defendant in the sixth section of the plaintiffs’ act of incorporation. A statute will not be adjudged to be unconstitutional, unless it is so beyond any rational doubt. *Ex parte M'Collum,*1 Cowen, 550 ; *Charles River Bridge*v. *Warren Bridge,*7 Pick. 415, 474.

*475*March 23d.*

*477The second question is, whether the plaintiffs’ charter contains a grant of an easement over the defendant’s land, as claimed by the plaintiffs. And that it does is manifest, because the language of the act makes no distinction between the flats belonging to individual abutters and those belonging to the Commonwealth, and an easement over both is essential to the principal object of the grant; which was the creation of a great water power. *Charles River Bridge*v. *Warren Bridge,*7 Pick. 396.

*Fletcher*and *D. A. Simmons*for the defendant.

Of the powers granted to the corporation the most important ones, so far as concerns this case, are, 1. To purchase and hold real and personal estate, not exceeding in value 2,000,000 dollars ; and, 2. To build a dam so as effectually to exclude the tide water and to form a reservoir or empty basin. They have made this reservoir, and they now claim a right to prevent the owners of land within it from making use of the land. And the first question is, whether the legislature could constitutionally empower the plaintiffs to take the defendant’s land in this way, for the purposes mentioned in the act of incor poration. We contend that the act is unconstitutional, 1. Because the object of it, so far as regards the water power, was not a matter of public convenience and necessity, but of private speculation. *Foster*v. *Essex Bank,*16 Mass. R. 270; *Gardner*v. *Newburgh,*2 Johns. Ch. R. 168 : *Van Horne*v. *Dorrance,*2 Dallas, 304 ; 5th Amendment to Const. U. S. The act may be valid so far as regards the road, and the flats and channels belonging to the Commonwealth, and *478may prevent the dam across navigable waters from being a nuisance. *Jackson*v. *Catlin, 2*Johns. R. 248; *Catlin*v. *Jackson,*8 Johns. R. 406.

It is unconstitutional, 2. Because no indemnity is provided for the defendant for the injury to which the plaintiffs would now subject him. The indemnity is for damage sustained by the building of the dam, &c. or from the exercise of any of the rights and powers given to the corporation. Now the defendant could not complain of any of their acts. The withdrawal of the water from his flats was not an injury to him ; on the contrary it was a benefit. The statute therefore does not provide for his case.

But if an indemnity were provided by the statute, the defendant would not be obliged to have recourse to it. If a man’s garden would be overflowed under the mill acts, he is not obliged to make a complaint for damages ; he has a right to make a dike to secure his garden from the water. It differs in this respect from the case of land taken for a turnpike road. All persons however may travel upon a turnpike road, and so far the road is for public uses. Here the flats have no connexion with the mill dam road. The mill acts do not propose to take away the land of one individual and give it to another ; and if they did, they would be unconstitutional and inoperative; but if the mill owner takes the land, the legislature may prescribe the remedy for the land owner ; and they have accordingly substituted a statute remedy for the remedy at common law, and so the mill dam cannot be abated as a nuisance. *Stowell*v. *Flagg,*11 Mass. R. 364.

Several private acts have been referred to by the plaintiffs, as illustrative of the power of the legislature. Some of them clearly relate to public uses of property, and some merely regulate the property of individuals ; but if any one of them transfers the property of one individual to another, it is sufficient to remark, that it is unconstitutional and does not furnish a precedent.

The position that the legislature have1 the power to make such a transfer, whenever the public good requires it, goes too far. It would authorize the transfer of private property to a college, bank, &c., for in such cases the public might be *479remotely benefited. If the legislature may give this basin to the plaintiffs, on the ground that it will benefit the public, they may on the same principle give the property of any individual to the proprietor of a cotton manufactory.

But if the legislature had power to give the corporation the exclusive right now claimed, they have not exerted it. All that was asked for and granted, was authority to erect the dams ; the plaintiffs did not ask for land. If they wanted land, it was supposed that they would purchase it, and they were expressly empowered to purchase and hold land to the value of two millions of dollars. The provision for an indemnity does not in spirit or in terms apply to the empty basin, but only to the full basin. Suppose the legislature had granted the flats between the dam and Boston Neck, the grant would only have passed the flats belonging to the Commonwealth. If they had a right and intended to grant more, they would have used explicit language. Grants of the government are to be construed strictly, and nothing passes by implication except what is absolutely necessary to the thing expressly granted. The plaintiffs say that their control of the defendant’s land is essential to them. It may be necessary for their enterprise, but it is not necessary in order to give full effect to this grant. So a capital is necessary for their enterprise, but they will not contend that the legislature have by implication given them one. *Charles River Bridge*v. *Warren Bridge,*7 Pick. 416, 461, 462, 463, 469, 486, 521, and cases there cited ; *Coolidge*v. *Williams,*4 Mass. R. 145.

To the point that abutters on tide water have a right to embank, provided they do not obstruct navigation, the counsel cited Angelí on Tide Waters, 150, 152 ; *Austin*v. *Carter,*1 Mass. R. 231.

*Gorham,*in reply, said the plaintiffs claim only an easement in the defendant’s land. They took possession of the easement when they laid bare the flats, and this taking was the injury for which the defendant was entitled to compensation, under the 6th section of the statute. It is true, indeed, that if he had applied for a jury, he might have recovered no damages, for he may, on the whole, have been more benefited than injured by having the flats laid bare, and the jury wou'd *480balance the advantages and disadvantages. *Avery*v. *Vande*u*sen,*5 Pick. 1S2.

*August 3d.*

1

*Shaw*C. J. did not sit in the case.

Putnam J.

delivered the opinion of the Court.* The plaintiffs claim an easement over the land of the defendant It is admitted that he owns the fee. The plaintiffs contend that they have acquired a right to use the defendant’s land as a receiving basin, into which the water retained in their full basin may flow, for the purpose of working the various mills which they have built and may erect ; and that such a right has been acquired in virtue of the grant of the legislature of this Commonwealth, to establish the Boston and Roxbury Mill Corporation. They contend that the “ public exigences require ” that the property of the defendant, as well as of divers other owners of flats ground constituting the receiving basin, should be appropriated to enable the corporation *to*carry their enterprise into effect, which enterprise they say was of public benefit; that the appropriation is within the provision of the 10th article of the Bill of Rights, an appropriation “ to public uses,” and that a reasonable compensation was provided for the owners of the flats ground in and by the act of incorporation.

Those positions are denied by the defendant. He contends that the enterprise of the plaintiffs was and is of a private character, and that the legislature had no authority to take or subject the land of the defendant to any incumbrance or service for the benefit of the plaintiffs ; and further, that if it were of a public character within the meaning of the constitution, no reasonable compensation has been provided for the damage sustained by the defendant.

Let us examine these pretensions. And first, was the enterprise of the plaintiffs so far of a public nature as to come within the meaning of the constitution, and to require the appropriation of the property of the defendant to carry the undertaking of the plaintiffs into effect ?

The design was to construct a dam or dams, for the purpose of obtaining a head and fall of the waters of a navigable arm of the sea', whereby to work grist-mills, iron manufacto*481ríes, and other mills for other useful purposes, and also to make an avenue or highway over the dams, for the accommodation of all persons, cattle, horses and carriages, for a fixed rate of toll.

To effect these objects, the right to *obstruct*the navigable water or arm of the sea, by the dams, and the right to pen up the tide water in a full basin, and so to raise a head of water, must be obtained. And the right to exclude the tide waters from the empty basin, into which the waters of the full basin should run, must also be obtained. The receiving basin would be empty at low water, and the gates shut against the sea ; the pond would be filled by the flow of the tide, and kept in by the gates ; and thus a perpetual mill power of great extent would be acquired. Connected with these water powers, the dam, or avenue from Beacon Street to Sewall’s point in Brookline, made a prominent subject in the consideration of the enterprise and fixing its character, viz. whether it should be considered as one merely of a private nature, or as one involving great objects of public utility.

The owners of the upland owned the flats ground to the extent of one hundred rods. The Commonwealth had the title to the flats beyond. So far as it regarded the right of the public, it is not contended but that the corporation acquired it by the act of the legislature. But the flats between the upland and those belonging to the Commonwealth, must be subjected to the control of the corporation, or they could not carry their undertaking into effect.

Here was a creation of an immense perpetual mill power, as well as a safe and commodious avenue, in and over the waste waters of the ocean and adjoining to a great city.

We should be at a loss to imagine any undertaking of an individual or association of persons with a view to private emolument, in which the public had a more certain and direct interest and benefit.

It was conceded in the able argument for the defendant, that the toll bridge or avenue might be sustained, so far as it affected the property of individuals, upon the same principles that are applicable to turnpike roads, where the lands of individuals are taken by the road proprietors, (with a view indeed *482to the tolls,) because there is a right in the public to pass on the avenue, paying toll, as on a highway. But it is said that the analogy fails, when applied to laying bare the flats, in order to get the water power for mills, because the public have no right in respect to the manufactories, as they have to travel upon the turnpike roads. But the public may be well said to be paid or compensated in the one, as well as in the other case ; and are benefited by the one improvement as well as by the other. Take the grist-mill established in this city, as an example. Is it of no benefit to have the corn ground near to the inhabitants, rather than at a distance ? “ But you cannot compel the miller to grind your corn for the toll, as you may the proprietors of the turnpike to let you travel over thu road for a toll.” If there be not an actual, there is a mor?> necessity imposed upon the owner of the mill, to accommo date the public to the extent of his power. Who ever heard of a refusal ? And in regard to the manufacturing establishments, is it nothing to the public that great numbers of citizens have the means of employment brought to their homes ? And are not the proprietors obliged to give employment. ? They cannot carry their works on without labor, and who that is disposed to industry and to that kind of employment, is prevent ed from its exercise ? This becomes a matter of interest, which will certainly direct and govern the parties. And it is among the most pleasant considerations attending this branch of the subject, that the interest or benefit arising from manufacturing establishments is distributed quite as much, and oftentimes more, among the laborers and operatives, than among the proprietors of the works.

But it is no sure test of the public exigency, that the land owner shall have a certain right to use the thing thus brought into operation. Take an aqueduct, for example, brought by the enterprise and capital of individuals through lands of others for the use of a city, paying all the damages for the taking of the waters at the spring, and for the digging up of the soil of strangers in order to conduct it. Those strangers have no right to the water thus brought into the city, unless the proprietors of the aqueduct shall permit it. And can it be questioned that the legislature might subject the lands of individuals *483to the control of the associated proprietors, to obtain such a public benefit ? Who could say that the public exigencies did not require individuals to grant the necessary privileges, for a proper compensation, to carry such a work into effect ? It would be for the interest of the proprietors to furnish the water at a reasonable price.

The plaintiffs are an authorized association to procure water power to drive mills of various kinds by tide waters. How does it differ in principle from the effecting of such an intent by fresh water, and thereby subjecting the lands of others to the service of the mill owner ? For more than a century the mill owner has had the right to raise a head or pond of water by flowing the lands of others, paying the damage. In many such cases valuable meadows have been inundated, and thus private property has been taken, without the consent of the owners, excepting only as they may be supposed to have consented to the laws made by the legislature. But for those mill acts, as they are called, the mill owner would have been liable for the damages at common law, or the owner of the land might have removed the dam as a private nuisance. But under and in virtue of those acts, the dam is protected ; it is no longer removable as a nuisance ; and the owner of the land is thereby deprived of the entire dominion of his soil, because the public good required the sacrifice at his hands, for a reasonable price.

The old statutes speak of mills as greatly beneficial to the-public. The preamble of *Prov. St.*8 Anne, c. 1, an act for the upholding and regulating of mills, recites that they sometimes fall into *despair*and are rendered useless and unserviceable, if not totally demolished, to the *hurt and detriment of the*public, as well as the loss to the partners who are ready to rebuild, &c. So the *Prov. St.*12 »2nne, c. 8, speaks of “ mills serviceable to the public good and the benefit of the town ” ; and gives to the mill owners liberty to continue and improve the pond for their best advantage, without molestation, paying damages for raising the water, &c. The *Prov. St.*1 *Geo.*2, c. 4, gave treble damages for the trespass of taking up, breaking down or damnifying any dam made use of *484for the inclosing of water improved for the benefit of any mill, &c.

These acts were revised by the *St.*1795, c. 74, which provides that the mill owner may flow *any*lands not belonging to him, (not merely a small quantity, as in the *Si. 12 Anne,)*which shall be found necessary to raise a suitable head of water to work his mill, paying damages, &c. The jury however are to determine how far the public convenience and the circumstances of the case do justify such flowing.

The *St.*1824, c. 153, provides for the recovery of damages sustained by the owner of the land either above or below "the mill. And the *St.*1825, c. 109, gives the mill owner a right of tendering the amount of the damages ; thus putting trespass and contract upon the same footing ; and it further limits the claim to two years before the process, &c.

Now we have nothing to do with the expediency of those various mill acts, but it is certainly apparent, that the legislature have considered it for the public good to encourage the erection of mills, and have subjected the property of the citi zens to the control of the mill owners, they paying the damage. In these cases the damage has been sustained by reason of the flowing of the lands. But in the case at bar, the damage is in laying bare the flats of the tide water, so as to make a fall for the water in the pond or full basin. But we do not perceive that there is any difference in the principles applicable to the two cases. The object in each is to get a head and fall, for mill purposes. In one case, having a fall, you flow meadows and upland to get a head ; in the other, having a head, you empty or lay bare the flats to make a fall. In each case a head and fall are obtained for the water power. In each case the mill owner operates on the lands of other persons, and the damage, it should seem, cannot be greater where the land is made bare, than where it is overflowed. The soil in each case is in the owner, and he may use it in any way which is not inconsistent with the rights granted to the mill owner. But he may do nothing more ; for we cannot accede to the position of the learned counsel for the defendant, that he has a right to fill up his flats ground, and so to dimmish the reservoir. The fallacy, we think, consists in *485taxing it for granted, that the legislature had no authority o make the grant to the corporation, and to subject the lands of the defendant to the service claimed. If it were not necessary thus to affect the property of the defendant for public uses, the argument would be sound ; but if the public exigencies required the appropriation of the defendant’s property to the extent defined in the grant to the corporation, they being accountable in damages, then it would seem clearly to follow, that the defendant cannot lawfully do any act or thing which shall counteract the grant. It should be, so far as regards these parties, just as if the defendant had, for a consideration paid, granted to the plaintiffs the right which they now claim under the legislative grant. To recur again to the example of the aqueduct; — would it be lawful for one through whose lands it has been conducted by the authority of the legislature, and who has been paid his damages, would it be lawful for him to cut off the pipes, under the claim'to dig upon his own land to any depth he pleased ?

The principle is, that the lands of individuals are holden subject to the requisitions of the public exigencies, a reasonable compensation being paid for the damage. It is not taking the property of one man and *giving*it to another. At most, it is a forced sale, to satisfy the pressing want of the public. Now this is as it should be. The will or caprice of an individual would often defeat the most useful and extensive enterprises, if it were otherwise. Property is nevertheless sufficiently guarded by the constitution. The individual is protected in its enjoyment, saving only when the public want it, not merely for ornamental, but for some necessary and useful purposes. Then indeed the owner must part with it for an equivalent.

It was argued for the defendant, that here was no jury to ascertain the extent to which the plaintiffs might flow, or lay bare the flats. And it seems to us that a jury was altogether unnecessary, because the legislature for themselves, being upon the spot, upon a full view and consideration of the matter, determined and ascertained the extent, as well as the public exigency of the grant.

It has been argued, that the legislature expected the plain*486tiffs would obtain the consent of the owners of the flats ground If that were so, and the expectation were not realized, it would become necessary that the legislative power should enable the plaintiffs to effect their enterprise. And besides, by providing for damages which might be sustained, the legislature must have contemplated the case which might happen, of a dissent of some persons whose property might be injured.

The contracts which were made between the petitioners and the town of Boston, were ratified by the legislature, as if they had been made by the corporation and the town. But the defendant did not come into any contract with the petitioners or the corporation, affecting his own private property. He is not to be affected by those contracts, in any way advantageously or injuriously ; but he stands upon his own rights as regulated by the law.

It was said, that it was not necessary that the plaintiffs should have the whole of the flats, to give effect to the legislative grant; though it seemed to be admitted that the whole was necessary for the completion of the plaintiffs’ enterprise. But the grant seems to us to embrace the whole which the plaintiffs claim. They were authorized “ effectually to exclude the tide water, and to form a reservoir or empty basin of the space between the dam from [Charles Street] and Boston Neck.” The defendant’s land is between those termini.

We are clearly of opinion, that the grant to the Boston and Roxbury Mill Corporation was well warranted by the public exigencies, and that the undertaking, although commenced with a view to the private advantage of the stockholders, promised to be of immense and certain utility to the State. That anticipation has been fully realized, so far as it related to the public. We regret that it did not prove beneficial to the enterprising projectors.

But it is contended, that there was no reasonable compen sation provided for the injury which the defendant has sustained.

Let us examine the act in that respect. By the sixth section it is provided, that any person or corporation sustaining any damage by the building of the dams, &c. “ or from the exercise of any of the rights and powers given to the corpo*487ration,” may have the same ascertained, (if there be any,) in the first place by a committee to be appointed by the Court of Common Pleas, and if their report should not be satisfactory, then may have the same tried and determined by a The committee are to inquire, “ whether any damage has been sustained from the causes aforesaid, and if any, they shall estimate the same, and where the damage is annual they, shall so declare the same in their report.”

It is said by the counsel for the defendant, that this provision was wholly inadequate ; that the defendant was benefited by having his land relieved from the tide water; that there was no present damage, and no provision for damage which should thereafter arise. And it was said further, that the corporation had done no act in taking the defendant’s land, so as to enable him to make any claim for damages.

These suggestions are more ingenious than sound. The depriving one of the beneficial use of his lands, is, in the sense of the law, a taking of his lands. It would be very clear in the case of flowing. But the principle is the same, in laying bare the lands. In each case, the" absolute, unqualified use of the soil is taken away. The owner cannot (as we have seen) counteract the effect of the grant, by filling up his land, in the one case, any more than in the other. He has the fee remaining in him, subject only to the right of the mill owner to flow, or to lay bare the land, in order to obtain the water power for mill purposes. When therefore the plaintiffs had built their dams, and excluded the water from the defendant’s flats, for an empty basin, there was in one sense *a taking*of the defendant’s, land. He thenceforward might claim any damage which he sustained from the diminished right to use his land as he pleased. Before the legislative grant, the defendant might have filled up his flats ground to a certain extent, not interfering with the rights of others. After the grant, he could not lawfully do it. He was deprived of the complete dominion and use which he enjoyed before. If he sustained any damage from that interference with his land, it accrued presently. If it were waste property, and no real injury was sustained, that might well operate with a reasonable man to prevent any claim for damage. The corporation then assert*488ed their right to lay bare the defendant’s flats forever. They took the defendant’s land for their mill operations, as effectually as the mill owner upon a fresh water stream takes the land above by flowing. The mill owner, in each case, claims an easement in the soil of another. To that extent the owner of the land may claim damage, and a present damage, for any mjury or diminution in the value of his estate, which may be redressed in the mode pointed out in the act of the legislature. These views of the case have led us to a clear opinion, that the judgment should be for the plaintiffs, with damages (by consent in such event) at one dollar and full costs of suit.1

1

 See *Boston Water Power Co.*v. *Boston and Worcester Railroad Corp*16 Pick. 212, and 23 Pick. 360.