Page:Harvard Law Review Volume 5.djvu/48

32 32 HARVARD LAW REVIEW. light to private individuals, for use in their private houses, affects the inhabitants as individuals, and not as a community. These perplexities are not referred to for the purpose of throw- ing doubt upon the cases themselves ; but they serve to show how much easier it is to come to a sound conclusion than to write a safe opinion. It remains to be considered whether there is any principle by which the cases may fairly be reconciled. Judge Wells, in contending that incidental public benefits could not be regarded, assumed that the right to take property for public purposes, and the right to tax for public purposes, must be subjected to the same tests. He found it necessary, therefore, to deal with the mill acts. Under these acts a riparian owner may erect a mill-dam on his premises, and flood the meadows of his neighbor above, upon the payment of damages to be assessed by a jury. The learned judge contended that this was not an exer- cise of the right of eminent domain, because " no private prop- erty, or right in the nature of property, is taken by force of mill acts either for public or private use." It seems that Judge Shaw and Judge Wells must share the responsibility for the astounding proposition that A can convert B's mowing land into a mill-pond without taking away his property. 1 It is now settled, however, that the right to flow under the mill acts is an interest in lands. 2 It follows that these acts do authorize the taking of property, and must be supported, if at all, either as an exercise of the right of eminent domain expressly given, or as a " regulation for the public good " impliedly given, because it is found so inconvenient in practice to get along without it. For, it seems, you may estab- lish a right of way through the constitution by necessity. An interesting exposition of this latter theory is found in the opinion of Mr. Justice Gray in Head v. Amoskeag Manufacturing Co., 113 U. S. 9. It was held in Ryerson v. Brown, 35 Mich. 333 (1877), that mill acts similar to those in Massachusetts were unconstitutional, not, however, upon the ground that incidental advantages to the public could not be considered, but upon the ground that before 1 Murdock v. Stickney, 8 Cush. 116. 2 Isele v. Arlington Savings Bank, 135 Mass. 142; Kenison v. Arlington, 144 Mass. 456.