| Vt. | Oct 15, 1884
The opinion of the court was delivered by
This was a bill in equity brought for the purpose of restraining the defendant by injunction from intermeddling, interfering with, or removing certain gates, which had been .erected by the orator upon the land of the defendant at the outlet of Willoughby lake, for the purpose of storing water in said lake to be used as occasion might require to increase the flow of water in Willoughby river, so that logs and other lumber might be floated down said stream; and was heard on general demurrer to the bill.
The right of the orator to enter upon the land of the defendant and erect and maintain said gates is attempted to be justified under acts of the legislature, passed in 1874 and 1878. The Act of 1874, No. 181, entitled “ An Act to authorize the removal of obstructions from Willoughby river,” by the 1st section, conferred the right upon the orator, and such others as might be associated with him, to clear out obstructions in the bed of said river, and upon its banks, from its source at Willoughby lake to Evansville, in the town of Brownington, so as to make it navigable for the running of logs and lumber, and to enter upon the bed of said river and its tributaries for that purpose, by paying or tendering all damages caused thereby in the manner stated in the 3d section of said act. It was provided by said 3d section that in case the parties could not agree upon the amount to be paid to any person sustaining such damage,
The Act of 1878, No. 214, entitled an Act to amend the Act of 1874, amended said act by adding thereto the following words: “And they, the said Foster and Evans, are hereby authorized and empowered to make, maintain, and control gates at the outlet of Willoughby lake for the purpose of saving the water in said lake, but shall not have power to raise the level of the waters in said lake above the ordinary high-water mark of the last fifteen years.” It is by virtue of that amendment that the orator claims the right to erect and maintain said gates. No such right was conferred by the Act of 1874; and unless it is given by the amendment of 1878 the orator fails to show any right that he can ask the aid of a court of equity to protect him in the enjoyment of.
No provision is made in the amendment for the ascertainment azzd payment of the damages that might be occasioned by the ezitry upon azzd occupation of the land of the defendant for the erection and maintenance of gates thereon, and the raising of the waters of the lake. It is claimed that the amendment is subject to the provisions of the Act.of 1874; — but that act made no provision for the ascertainment and payment of damage for such acts as the orator was authorized to do under the Act of 1878.
Article 2 of the State Constitution pz*ovides that: “Private property ought to be subservient to public uses when necessity requires it; nevertheless, when any person’s property is taken for the use of the public, the owner ought to receive an equivalent in money.” And iiz Article 5 of the Constitution of the United States, it is said, “Nor shall
The Constitution limits the right to take private property to cases where necessity requires it for a public use; and then it can only be taken on making just compensation to the owner. In all grants of power conferred by the legislature upon corporations or individuals to appropriate the property of citizens, the right has been based upon an existing necessity for a public use, and careful provision has been made for compensation; and any legislative act authorizing such an appropriation when such a necessity does not exist, or which does not provide for compensation, is plainly in conflict with the Constitution. Gould Waters, s. 250, and cases there cited.
The compensation must be made at the time of the taking, or some certain security must be given, or fund provided for its ultimate payment. A party whose property has thus been taken cannot be divested of it upon the security that an award or judgment may furnish him alone. In this case no compensation was made or tendered, and no adequate method was provided by which the damages could be ascertained, or security provided for their ultimate payment.
It is claimed that there was no such taking of the property of the defendant as entitled him to compensation. Any injury to the property of an individual which deprives him of the ordinary use of it, is equivalent to a taking, and entitles him to compensation. Cooley Con. Lim. 544. A right of entry upon land for the purpose of the erection and maintenance of gates upon it, and the flowage of land between high and low water mark, is a legal injury to the proprietor, and necessarily deprives him of the ordinary and beneficial use' of it. In Newell v. Smith, 15 Wis. 101" court="Wis." date_filed="1862-05-15" href="https://app.midpage.ai/document/newell-v-smith-6598640?utm_source=webapp" opinion_id="6598640">15 Wis. 101, it was decided that an act of the legislature authorizing pro. prietors 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 lands, to be ascer
We entertain no doubt, but that upon the facts stated in the bill, there was such a taking óf the property of the defendant as entitled him to compensation.
We have not deemed it necessary to decide whether, upon the facts stated, the use for which the orator was authorized to appropriate the property, was a public use or not; as the failure to make compensation or to give such security for its payment as the law requires, rendered the act unconstitutional.
The decree of the Court of Chancery is reversed, and cause remanded, with a mandate that the bill be dismissed with costs.