35 Conn. 496 | Conn. | 1868
On the report of the committee in this cause being presented to the Superior Court, that court, instead of talring any order upon it, reserved the questions arising upon it, and also the question what order or decree should, upon the facts contained in the report, be made in the cause, for the consideration and advice of this court. Upon the cause coming before us on this reservation we are asked to look back at a former decision of the Superior Court, made several terms before the report of the committee was made, denying the motion of the respondents for the removal of the cause for trial into the Circuit Court of the United Stales, then next to be held in and for the district of Connecticut ; and we are asked to do this upon the ground that the proceedings in the Superior Court subsequent to that mo*
In regard to the main question on the report of the committee, we fully assent to the suggestion of the respondents’ counsel, that the statute under which this proceeding is had, authorizing, as it does, the taking away from another of all beneficial use of his property in certain cases and depriving him it may be of some of his most cherished rights, and that for objects not always much more beneficial to the public than the purposes to which the land was devoted before it
Under this idea, the respondents first claim that it does not sufficiently appear that the petitioners desire to erect a water mill to be operated by the water with which they propose to flow the respondents’ land. This desire is alleged in the petition, but it is said that the committee have not found it, because they find that although it is their desire to have-water mills set up on their lands, yet as their desire is rather to sell or léase the power thus obtained than themselves-, to occupy it, they do not bring their case within the statute». "We are of opinion however that a desire to have a watermill erected by another person under the petitioners’ lease or license is the same in effect as if they desired to erect it themselves. Indeed in a legal sense, it is a desire themselves to erect watermills, since what they cause to be done by others is in effect done by them. If there was any doubt as to the fact that water mills would be set up, or that others which are already erected and in operation would be more - successfully carried on, after obtaining the privilege of flow-age which the petitioners desire, the point might be worthy of more consideration. But when it appears from the maps. which the parties have caused to be made of these premises, for the purpose of reference on the argument of the ease, that the petitioners have already erected a dam and obtained a valuable water power thereby, which power they wish to increase by raising their dam to a greater height instead of' erecting entirely now works; and when it appears moreover, from the public maps of the county to which counsel have referred, that there are already one or more mills operated by.the water held by the dam as it now is, the question is involved in a technical nicety which we do not feel bound to regard.
We are satisfied, under the construction which we have said should be given to this law, that this fall is a part of the Baltic mill-site within the meaning of the statute. A mill-site is the same as a mill privilege, which, in Gould v. Boston Duck Co., 13 Gray, 412, was said “ to embrace the right which the law gives the owner to erect a mill thereon, and to hold up or let out the water at the will of the occupant for the purpose of operating the samfe in a reasonable and beneficial manner.” It must of necessity include a reasonable amount of fall below the mill for the purpose of letting the water flow off without obstruction to the wheels, and we do not think it reasonable to confine the right of the mill owner to the exact amount of fall, to the fractional part of an inch, which will enable the water to flow away from his wheels without obstruction, especially where it appears that he has all along contemplated using his whole fall. The Spragues purchased their land under the bed of the river and on its banks, it may fairly be assumed, for the purpose of obtaining a valuable mill-site. They erected their mill, using "all their fall except two or three feet below their mill, which .they reserved for future
In regard to what are called the little mills, operated by water drawn from Beaver brook, the court are of opinion that those structures are not mills within, the meatiing of this statute. They were not, according to the report of the committee, constructed as mills for any practical beneficial use, and
The result of the whole case is, that the Superior Court is advised to accept the report of the committee, and to grant the prayer of the petition so far as to allow the petitioners to set or flow back the water of the Shetucket River up to the point in the stream where the respondents own the bed of it and the land on each of its banks, and no further.
In this opinion the other judges concurred.