The plaintiffs do not rely upon the fact that the dam was partially constructed by the defendant before the passage of the St. of 1889, c. 383. The plaintiffs could not avail themselves of that fact in this suit. If the dam is maintainable under that statute, the plaintiffs would not be entitled to its abatement although it was partly erected without right. Ware v. Regent’s Canal Co. 3 DeG. & J. 212. And if they are entitled to damages for the technical violation of their rights, their remedy is at law. Washburn v. Miller, 117 Mass. 376. Nor do they rely upon the point suggested by the defendant, that the operation of the act is confined, as it clearly may be, to Barnstable County. Cooley, Const. Lim. 390.
The plaintiffs contend that the St. of 1889, c. 383, under which the court found that the dam was completed and is maintained by the defendant, is unconstitutional, because, first, it purports to authorize the taking of private property for a use which is not public in its nature, and secondly, if the statute is constitutional, the defendant has not brought himself within it.
But in regard to the first point we think the plaintiffs misapprehend the constitutional provision which applies to the act in question. The statute was not an exercise on the part of the Legislature of the right of eminent domain, but was enacted under the provision -which gives it power to “ make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, ... so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same.” Const. Mass., Part 2, c. 1, art. 4. It is upon this provision that the mill acts have been placed finally in this State, after what appear at
Upon this provision also stand the cranberry act, so called, (St. 1866, c. 206) ; the act in regard to draining meadows, swamps, marshes, beaches, and low lands, with its authority to commissioners to open the floodgates of a mill, or to erect a temporary dam on the lands of another person, and assess the damages upon the proprietors (Pub. Sts. c. 189; see Wurts V. Hoagland, 114 U. S. 606) ; the act in regard to proprietors of wharves, general fields, and lands lying in common, with the control which it gives to a certain proportion in number and interest over the property of the rest (Pub. Sts. c. 111); and the act in regard to partition, by which one cotenant may be compelled to take money instead of land, or to give up for a time the occupation and enjoyment to another. Pub. Sts. c. 178. The mill acts, and these and other like statutes, (of which various illustrations might be given,) rest upon the principle that property may be so situated or of such a character that the absolute right of the individual owner to a certain extent must yield to or be modified by corresponding rights on the part of other owners, or by what is deemed on the whole to be for the public welfare. See Commonwealth v. Tewksbury, 11 Met. 55; Commonwealth v. Alger, 7 Cush. 53; Denham v. County Commissioners, 108 Mass. 202; Wurtz v. Hoagland, 114 U. S. 606.
The provision above quoted does not authorize the Legislature to take property from one person and give it to another, nor to take private property for public uses without compensation, nor wantonly to interfere with private rights. These are always to be carefully guarded and protected. But of necessity cases will arise where there will or may be a conflict of interests in the use or disposition of property, and questions may and will come up affecting the public welfare in regard to the use which shall or shall not be permitted of certain property.
It is doubtful, however, whether any property of the plaintiff is taken or any of his rights are invaded. The statute in question authorizes the erection and maintenance of a dam across any stream for the purpose of creating or raising a pond for the culture of useful fishes. It is to be erected “ upon the terms and conditions and subject to the regulations contained in chapter one hundred and ninety of the Public Statutes so far as the same are properly applicable in such cases.” The chapter referred to is what is known as the mill act. Under that it has been held that the right to erect and maintain a dam to raise water for working a mill does not give to the mill-owner any right in the land flowed, or take away any right from the landowner. The latter may embank his land and thus stop any flowage of it, or, if he chooses, he may collect of the mill-owner damages in gross or annually for the flowage. Until the landowner manifests his election to claim damages, he cannot be compelled by the mill-owner to submit his land to be flowed, and until then the only right which the mill-owner has as between himself and the landowner is to maintain his dam without liability to the landowner for damages in an action at law. While the landowner may protect bis land from flowage, he cannot, of course, wantonly interfere with the right which the statute gives to the mill-owner to maintain his dam. Williams v. Nelson, 23 Pick. 141. Murdock v. Stickney, 8 Cush. 113. Storm v. Manchaug Co. 13 Allen, 10. Paine v. Woods, 108 Mass. 160. Lowell v. Boston, 111 Mass. 454. Read v. Amoskeag Manuf. Co. 113 U. S. 9.
It appears from the facts found in the present case that the defendant’s dam flows about sixty acres, all of which, with the exception of about three fourths of an acre belonging to the plaintiffs, is owned by the defendant. It is also found that the land of the plaintiffs was of small market value for any other use to which it could be applied, and that there is “much land in Barnstable County similarly situated, having small market value for any purpose to which it can be applied by its separate owners, which would be enhanced in value if it were shown by successful experiment that such land could be profitably used for the cultivation of useful fishes under the powers conferred by ” the act in question. In view of these facts, and for the reasons above stated, we think that the claim of the plaintiffs that the act is unconstitutional cannot be maintained, We come to this conclusion the more readily, because a contrary result would oblige us, we fear, to hold, if the question were directly presented to us, that the cranberry act, under which a large and profitable industry has grown up, was also unconstitutional. . Although several cases under that act have been before this court, no doubt as to its constitutionality seems to have been suggested. Bearse v. Perry, 117 Mass. 211. Hinckley v. Nickerson, 117 Mass. 213. Blackwell v. Phinney, 126 Mass. 458. Howes v. Brush, 131 Mass. 207.
The plaintiffs further contend, that, if the act is constitutional, the defendant has not brought himself within its scope, because it does not appear that any direct or positive benefit will be derived by the public from the defendant’s acts, and because the dam has been erected and will be maintained by him wholly for his own personal pleasure, profit, and advantage. But the court
The result is that, in the opinion of a majority of the court, the decree appealed from must be Affirmed.
My objections to the constitutionality of the St. of 1889, c. 383, briefly stated, are as follows. The purpose of the statute is not public. Cultivating fish for one’s private use no more concerns the public than cultivating corn or other articles of food. The taking for such a purpose of the land of another by overflowing it cannot be justified as an exercise of the right of eminent domain. Notwithstanding what has been said in some of our decisions, overflowing a person’s land without his consent is a taking of property while the overflow continues, and is a tort which would be enjoined unless the statutes authorized it. The mill acts were originally sustained on the ground that the erection of water mills was for the public benefit, and this was strictly true of grist-mills and saw-mills, if the public had the right to have their grain ground and their logs sawed at the mills. The acts, however, extended to mills of all kinds, in most of which the interests of the public were less direct; still, the erection of water mills, when water was the only available source of power, was always of public concern
The statute in question cannot be sustained on the ground that it authorizes the improvement of property of different owners for the common benefit of the owners or for the public benefit, or on the ground that it authorizes the improvement of property which otherwise would be practically useless. It is not confined to useless or swampy lands, or to lands of any particular description. The constitutionality of the statute must be determined by its meaning, and not by the special facts of the present case. It is possible under the statute that any owner or lessee of lands or flats situated in Barnstable County for the purpose of making a fish pond for his own private use and pleasure, may overflow the greater part of the arable land in the county, with the buildings upon it. None of the precedents cited seem to me to go as far as the opinion of the court in this case, and I am compelled to think the statute unconstitutional.