Head v. Amoskeag Manufacturing
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. 
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.
^1 AN ACT FOR THE ENCOURAGEMENT OF MANUFACTURES.
Section 1. Any person, or any corporation authorized by its charter so to do, may erect and maintain on his or its own land, or upon land of another with his consent, a water-mill, and dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same, for its use and of mills below, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed.
Sec. 2. If the land of any person shall be overflowed, drained, or otherwise injured by the use of such dam, and said damage or injury shall not, within thirty days after due notice thereof, be satisfactorily adjusted by the party erecting or maintaining said dam, either party may apply by petition to the supreme judicial court, in the county or counties where such damage or grievance arises, to have the damage that may have been or may be done thereby, assessed; which petition shall set out the title and description of the premises damaged, the right by reason whereof said grievance arises, the location of the dam, and extent of the damages that may be occasioned thereby; and said court, after reasonable notice to all persons interested, shall, unless the parties agree upon the judgment that shall be rendered, refer said petition to a committee of three disinterested persons, to be appointed by said court, to determine in relation to the matters set forth therein.
Sec. 3. The committee shall give such notice to the parties as shall be ordered by said court; shall hear the parties and view the premises; and, if they shall be of opinion that the flowing or draining of said land, to the depth and extent that the same may or can be flowed by said dam, is or may be of public use or benefit to the people of this state, and that the same is necessary for the use of the mill or mills for which said dam was designed, they shall estimate the damages, and make report to the said court at the next term thereof after said view and estimate. Upon the return of the report of said committee, any person interested therein may object to the acceptance of the same for any irregularity or improper conduct of said committee; and said court may set aside said report for any just and reasonable cause, and, if required, shall inquire for itself whether the erection of said dam is of public use or benefit, any finding of the committee upon that point notwithstanding;
and, if the court shall be of opinion that the erection of said dam is not of public use or benefit, the petition shall be dismissed. But if the report shall be accepted and established, the court shall render judgment thereon, after adding fifty per cent. to the estimate of damage; which judgment shall be final, and execution shall issue thereon. Before the reference of such petition to the committee, if either party shall so elect, said court shall direct an issue to the jury, to try the facts alleged in the said petition, and assess the damages; and judgment rendered on the verdict of such jury, with fifty per cent. added, shall be final, and said court may award costs to either party at its discretion.
Sec. 4. No person or corporation shall derive any title from said proceedings, or be discharged from any liability in relation to said premises, until he or it has paid or tendered to the person aggrieved or damaged the amount of such adverse judgment.
Sec. 5. This act shall in no way affect existing suits, nor any mill of other persons lawfully existing on the same stream, nor any mill-site or mill privilege of other persons on which a mill-dam has been lawfully erected and used, nor the right of any owner of such mill, mill-site, or mill privilege, unless the right to maintain on such last-mentioned site or privilege shall have been lost or defeated by abandonment or otherwise; neither shall it affect the right of a town in any highway or bridge which said town may by law be liable to keep in repair: provided, however, that the provisions of this act shall not be applicable to any navigable waters in this state.
Sec. 6. This act shall take effect from and after its passage.
Approved July 3, 1868.