Head v. Amoskeag Manuf

• Decision Date: 05 January 1885
• Citation: 28 L.Ed. 889,5 S.Ct. 441,113 U.S. 9
• Parties: HEAD v. AMOSKEAG MANUF'G Co
• Court: U.S. Supreme Court

113 U.S. 9

5 S.Ct. 441

28 L.Ed. 889

HEAD v. AMOSKEAG MANUF'G Co.

January 5, 1885.

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, c. 20, which is copied in the margin.¹

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 and 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 the cost of several millions 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 and 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 according 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 deny 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 50 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 N. H. 332, 563.

C. R. Morrison, for plaintiff in error.

[Argument of Counsel from pages 12-14 intentionally omitted] Geo. F. Hoar and B. Wadleigh, for defendant in error.

GRAY, J.

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 lands of others. Eastman v. Amoskeag Manuf'g 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 land 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, c. 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 Indiana, 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 afterwards repealed in Georgia. The principal statutes of the several states are collected in the margin.²

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 then in three states only, and for incompatibility with their respective constitutions. Loughbridge v. Harris, (1871,) 42 Ga. 500; Tyler v. Beacher, (1871,) 44 Vt. 648; Ryerson v. Brown, (1877,) 35 Mich. 333. 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. 40; Memphis City R. Co. v. Memphis, 4 Cold. 406; Moore v. Wright, 34 ala. 311, 333; bottoms v. Brewer, 54 Ala. 288; Hay v. Cohoes Co.3 Barb. 42, 47, and 2 N. Y. 159. The principle objects, no doubt, of the earlier acts were grist-mills, and it has been generally admitted, even by those courts which have entertained the mo st restricted view of the legislative power, that a grist-mill which grinds for all comers, at tolls fixed by law, is for a public use. See, also, Blair v. Cuming Co. 111 U. S. 363; S.C. 4 SUP. CT. REP. 449. 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, c. 153; Wolcott Woollen Manu f'g Co. v. Upham, 5 Pick. 292; Palmer Co. v. Ferrill, 17 Pick. 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 Manuf'g 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 land 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 Conn. 78; Venard v. Cross, 8 Kan. 248; Harding v. Funk, Id. 315; Miller v. Troost, 14 Minn 282, (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...