Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-08-03
AN IMPORTANT OPINION.


RICHARD F. PErT1eREw In the District
Y. Court of Moody
IAN lanes 's,,'' Wilson I.oS. and county.
Mr. Moody for plain,itf; and Mr.. Grigsby
for defendants
Orler on tlefcndlnts, to shotc catuse echy q
temporary injunction Should nat I've issued,
restraining them from the erection Of a
mill dam across thc Big SioMr aiuer.
OPINION BY JUDGE SHANNON.
The constitution declares that no person
shall be deprived OF property without due
process of law; nor shall private property
be taken for public use without Just com
pensa,ion. 1t is right of private property
that 1t shall not be impaired, or taken away,
exc3pt in this manner: Bv due process of
law Is in,eniaed tho general law, which
hears before il condemns, which proceeds
upon inquiry, and renders judgment only
after trial. The meaning is, that every cit
izen shall hold his property under the pro.
lection of the general rules which govern
society. When specific property is taken,
pecuniary compensation agreed upon, or
determined by due inquiry, must be paid.
Private property can thus only be taken
for public use, and pursuant to law. But the
right to appropriate lies dormant, until
legislative action is adopted pointing out
the occasions. the mode, conditions and
agencies for its appropriation.
Whether the power of eminent domain
can rightfully bc exercised in the condem.
nation OF lands for such manufacturing pur.
poses, is aquestioa upon which the authori
ties have been at variance. Saw mills, grist
mills, and other manufactures" says Cooley
in Const Limitations, p 534,-'are certainly
a public necessity; ard while the country is
new. and capital not q, er-abundant for such
enterprises, it sometimes seems essential
that government should offer large induce
ments to parties who will supply this
necessity" "The legislature in some of the
states has taken the matter in hand, and
has surmounted the difficulty. sometimes
by authorizing the land to be appropriated.
and at others by permitting the erection of
the dam, but requiring the mill owner to
pay annually To the proprietor of the land
the damages caused by the tl,wing, to be
assessed in some i'm partial mode the
validity Of such statutes "has often been
The rights granted by these laws to mill.
owners, are said by Chief Justice Shaw, of
Massachusetts, 10 be "grantc,l fnr The belt n
use of the water power, upDn considerations
Of general policy and the general good" %
Pick, 220; 5 Pick, 20l; Angel on water.
courses, ch. ~
Part Ill. Of code Of civil procedure,
relates TO special proceedings of civil
nature" And under this head is
found in chapter 80. the act rs.ating to
"mill-dams and mills" which was approved
January 7th, 1868. 1t seems to have been
taken by our legislative assembly, almost
verbatim, from q statute of Minnesota.
[See act of Nav 23. 1857, in statu cs OF
Minn., 1S49- 1858; also Statutes Of Min
ncsota," revision OF 1866. page 2a9.
In Miller ct. al. vs.. Troost ct. al, IA
Mimi. Rep, 3G5, the supreme court of that
state held that their statute relating to
"Dams and Mills" Is constitutional. Sic
also 10 MINI. 80; II id. 253; 16 i'd 1856.
Iu many of lis main features. ch. 66 of the
"Gcueral Statutes Of Kansas, page 57Gl,
commonly known ss the "Mill,Dam Act,'
is like our act ON the subject And 10
Venard v. Cross. s Kansas Rep, 26O. their
"Mill. Dam Act" was held TO be cnns,itu.
tional. So, also. in Harding '. Funk, {
Kansas Rep, 3l5 the same question was
brought before the supreme coult aud it was
again decided that the said act is not uncon.
stitutional. Mr.. Justice Valentine. in de-
livering the opinion, cites q long list of au
ihori,ics to sustain that position. See also
Ncwcomb " Smith, 2 pinncy's Wis,
The ab ,vc cursory views sre put forward
Tor consideration, withou, any purpose
however, of deciding, at present, the grave
question oi the conslitutinnali,y of our act
upon hearing before Judge a, chambers
OF motion foy temporary injunction, i
y should no, b. exix cted thu, . statute o
i tnoan, @ scqul.sced in by bench and. ba' |
e should he dc Jared null and void and cs
" &C Ally so when valuable ''th's me sup
,oscd to have hitherto tcca acqai'ci unda
l. For this cotsl,n. | shall therefor