Gaylord v. Sanitary Dist. of Chicago

• Citation: 204 Ill. 576,68 N.E. 522
• Parties: GAYLORD v. SANITARY DIST. OF CHICAGO et al.
• Decision Date: 26 October 1903
• Court: Supreme Court of Illinois

204 Ill. 576

68 N.E. 522

GAYLORD

v.SANITARY DIST. OF CHICAGO et al.

Supreme Court of Illinois.

Oct. 26, 1903.

Appeal from Circuit Court, Will County; R. W. Hilscher, Judge.

Petition by Robert Gaylord, under the eminent domain law, against the sanitary district of Chicago and others. Petition dismissed, and petitioner appeals. Affirmed.

Charles A. Munroe (Thomas A. Moran, of counsel), for appellant.

John P. Wilson and Henry S. Robbins, for appellees.

WILKIN, J.

Appellant filed his petition in the circuit court of Will county, in conformity with the eminent domain law of this state, against appellee and others, alleging that ‘he is the owner of the bed and banks of the Des Plaines river, in sections 20 and 21, township 35 north, range 10 east of the third principal meridian, from the south line of section 16 to the west line of section 20; that he is about to build a public gristmill, and also construct other machinery, as well as also the improvement of the navigation of the Des Plaines river at a point on said land described as follows [here follows description]; that in order to construct, operate, and equip said public gristmill and other public machinery, and also the improvement of the navigation of the Des Plaines river, it is necessary to take and injure private property without the owner's consent; that the parties with whom petitioner is unable to agree as to their just compensation are the Atchison, Topeka & Santa Fé Railroad Company * * * and the sanitary district of Chicago.’ Then follows a description of a particular piece of land in which the sanitary district has an interest, with the prayer that a jury be impaneled to assess the damages in pursuance of the provisions of ‘An act in regard to mills and millers,’ etc., approved March 2, 1872, and in force July 1, 1872. Rev. St. 1874, p. 701, c. 92.

Petitioner was able to agree with all the defendants as to their just compensation, except the sanitary district of Chicago, which appeared in the circuit court and entered its motion to dismiss the petition: ‘First, because this statute is unconstitutional, in that it attempts to authorize the taking of private property without the owner's consent for a private, and not a public, use; second, because petitioner seeks by this proceeding to acquire the property for a private use, and his claim that he desires to equip and operate a public gristmill is a mere subterfuge, under which he seeks to acquire the property for the mere private purposes of developing an extensive water power; third, because the property sought to be taken had been acquired and was used by appellee for the purpose of carrying off the sewerage of Chicago, and, being thus already devoted to a public use, could not be taken by appellant under this statute, which contemplates only the taking of private property.’ Evidence was heard in support of and against the motion, and an order entered sustaining the same, to reverse which appellant prosecutes this appeal.

Section 1 of the statute under which appellant claims the right to condemn the property of appellee provides as follows: ‘When any person or persons owning land on one or both sides of any stream or water-course, any part of the bed of which belongs to such person or persons, shall desire to build or repair any public grist mill, saw mill or other public mill or machinery, or to erect, repair or increase in height any dam across such stream or water-course, to supply water for any such mill or machinery, or to improve the navigation of any such stream or water-course for the use of such mill or machinery, and it shall be necessary to take or injure private property without the owner's consent, and the compensation therefor cannot be agreed upon by the parties interested, it shall be lawful for the person or persons desiring to build or repair such mill or machinery, or to erect, repair or increase the height of any such dam, to cause the damage or compensation to be paid to the owner or other person interested in the property to be taken or injured, to be ascertained in the manner provided by law for the taking or damaging of private property for public use: provided,’ etc. Other sections provide that no dam shall be erected to the injury of any mill lawfully existing on the same stream, nor to the injury of the health of the neighborhood, and the right to the judgment of condemnation shall be availed of within a certain time; otherwise to revert, etc. Section 6 prescribes the duty of the owner or occupier of every public gristmill within the state, requires him to grind the grain brought to his mill in due turn, and authorizes him to take certain tolls for different kinds of grain. The next section attaches a penalty for his failure to promptly and punctually attend to the duties imposed. Section 8 makes him accountable for the safe-keeping of grain received in his mill for the purpose of being ground, and section 9 imposes a penalty for taking illegal tolls. Section 11 relates to dams erected across any river or water course in this state under the authority of any law of this state, and has no application to this case.

This class of statutes has been in force in this and many other states of the Union from a very early day-in Illinois and several others while yet under territorial organization-and are generally known as ‘mill acts.’ They were manifestly passed at a time when water power was practically the only means of running such mills, and which, in the then existing condition of society, were a public necessity. As was to be expected, in view of the demands for mills to grind grain for food and to saw timber into building material for the erection of houses, as well as of the fact that land had little or no market value, these laws were enforced and acquiesced in for a great many years, until valuable rights had been acquired under them. Those of Illinois, found in Laws 1819, p. 264 (Rev. Code 1827, p. 297; Rev. Laws 1833, p. 449), were each limited to water gristmills and sawmills, except that of 1819, which was confined to gristmills. They were never called in question, so far as we are advised, and certainly not in this court. The later statutes in other states like the act under which this proceeding is brought, have attempted to extend the power to other than public gristmills, authorizing the taking or damaging of private property for the erection and operation of mills generally; our statute, as will appear from the first section quoted above, extending to ‘other public mill or machinery,’ and ‘to improve the navigation of any such stream or water-course for the use of such mill or machinery.’ When mill acts came to be questioned, many considerations conspired to influence the courts to be inclined to sustain them, and hence decisions are to be found placing their validity upon various grounds. In every instance, so far as we are advised, acts providing for condemnation proceedings for the benefit of public gristmills have been upheld upon the ground that taking private property for that purpose is for a public use, and not for a mere individual purpose; and some of the ablest courts of last resort have sustained laws authorizing the taking or damaging of land for water power for running mills, and factories generally, by water power. See cases cited in note to section 180 of Lewis on Eminent Domain, where the author says: ‘The constitutionality of acts for this purpose has been seriously questioned, but nevertheless upheld either on the ground of authority, or on long and general acquiescence and usage, in Iowa, Kansas, Maine, Minnesota, Nebraska, and Wisconsin. On the other hand, such acts have been held to be unconstitutional, as authorizing the taking of private property for private use, except in the case of public mills, in the states of Alabama, Georgia, Michigan, New York, Vermont, and West Virginia.’

The Supreme Court of the state of Massachusetts, and other courts, and the Supreme Court of the United States, have sustained acts which gave the right to have the damages assessed for overflowing the lands of another by the erection of dams for operating mills and other machinery, not upon the right of eminent domain, but on the theory that the statutes do not authorize the taking or damaging of private property at all; that is, that ‘it is not a right to take and use the land of the proprietor above against his will, but it is an authority to use his own land and water privilege to his own advantage and for the benefit of the community’; that it is ‘a provision by law for regulating the rights of proprietors on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole to promote and secure their common rights in it.’ Bates v. Weymouth Iron Co., 8 Cush. 548, approved and adopted in Head v. Amoskeag Mfg. Co., 113 U. S. 9, 5 Sup. Ct. 441, 28 L. Ed. 889. These and other cases also seem to proceed upon the idea that that which is a public benefit amounts to a public use.

As already said, the validity of our present statute, in so far as it extends the right of condemnation to sawmillsor...