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was:

It would have been an absurd condition; and while error to the Supreme Court of the State of New
it is true that he had a right, if he chose to impose it, Hampshire. The opinion states the case.
yet whether it is reasonable in its character can prop-

C. R. Morrison, for plaintiff in error.
erly be cousidered when it is a question whether the
words were used as a mere reason for executing the George F. Hoar and B. Wadleigh, for defendaut in
paper or as a condition upon which it was to become error.
operative.

GRAY, J. This was a writ of error to rev së a judg. It is quite natural for a person to give some reason ment of the Supreme Court of the State of New Hampfor making a will; and as has been well said, a "close shire against the plaintiff in error, upon a petition and literal interpretation may very easily carry us wide filed by the defendant in error (a corporation estabof the intention."

lished by the laws of New Hampshire for the manu. Swinburne says: "Albeit the testator make his tes- facture of cotton, woolen, iron and other materials) for tament by reason of some great journey, yet it is not the assessment of damages for the flowing of his land rovoked by the return of the testator."

by its mill-dam at Amoskeag Falls, on the Merrimack Where the words “Lest I should die before the next river, under the general mill act of that State of 1868, gun, I make," etc., were used in a will written eight- ch. 20. een years before the testator's death, it was upheld. In the petition filed in the State court the Amoskeag Burton v. Collingwood, 4 Hagg. Eccles. 176.

Manufacturing Company alleged that it had been a4So “In case I should die on my travels," eto., al- thorized by its charter to purchase and hold real esthough the testator returned home, it being shown tate, and to erect thereon such dams, cavals, mills, that he recognized the paper as his will shortly before buildings, machines and works as it might deem nechis death. Strauss v. Schmidt, 3 Phill. 209.

essary or useful in carrying on its manufactures and In Re Tylden, 18 Jur. 136, the language of the will business; that it had purchased the land on both sides

“If it please Almighty God to call me suddenly of the Merrimack river at Amoskeag Falls, including from this mortal life, and during my absence from the river and falls, and had there built mills, dug home, I leave," etc.; and it was sustained, although canals, and established works, at a cost of several milthe testator died at home.

lions of dollars, and for the purpose of making the So in Re Dobson, L. R. 1 P. & D., 88, where the whole power of the river at the falls available for the words were: “In case of any fatal accident happening use of those mills, had constructed a dam across the to me, being about to travel by railway, I hereby river; that the construction of the mills and dam, to leave," etc. Also in Thorne's case, 4 Sw. & Tr., 436, the raise the water for working the mills, for creating a language being: “I request that in the event of my reservoir of water, and for equalizing its flow, was of death while serving in this horrid climate, or any ac- public use and benefit to the people of the State, and cident happening to me, I bequeath," etc.

necessary for the use of the mills for which it was deIn the case of Bradford's Adm'x v. Bradford, etc., 81 signed; and that Head, the owuer of a tract of laud Ky., the language of the will was of a more conditional described in the petition, and bounded by the river, character than in this instance, to wit.: “Being in the claimed damages for the overflowing thereof by the full possession of all my mental faculties, but in feeble dam, which the corporation bad been unable satisfachealth, and about to start on a long journey, and sub- torily to adjust; and prayed that it might be deterjeet to the common casualties of others, I deem it pru- mined whether the construction of the mills and dam, dent to provide for the disposition of my property in and the ftowing, if any, of Head's land to the depth case I should not return;" and it was held that it was and extent that it might or could be towed thereby, not contingent, and although the testator returned were or might be of public use or benefit to the people home and lived for several days thereafter, yet it was of the State, and whether they were necessary for the sustained.

mils, and that damages, past or future, to the land by It is shown in this case that the testator carefully the construction of the dam might be assessed accordpreserved the paper in contest; that he examined it ing to the statute. the year prior to his death; and while these facts can- At successive stages of the proceedings, by denot constitute a statutory republication of it, yet they murrer, by request to the court after the introduction illustrate the intention of the maker of the instrument, of the evidence upon a trial by jury, and by motion in as they tend to show that he believed he had disposed arrest of judgment, Head objected that the statuto of his property by it; and while the word “if” is an was unconstitutional, and that the petition could not apt one to express a condition, yet the language used is be maintained, because they contemplated the taking so general ir its character that it shows the testator in

of his property for private use, in violation of the fourtended it as words of inducement to the making of the teenth amendment of the Constitution of the United will only, and not that the disposition of his property States, which declares that no State shall deprive any should depend merely upon the place of his death.

person of property without due process of hw, nor Judgment affirmed. 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 CONSTITUTIONAL LAW . DEPRIVATION OF declares that all men have certain natural, essential PROPERTY--STATE STATUTE-OVER

and inherent rights, among which are the acquiring, FLOWING LANDS.

possessing and protecting property, and that every

member of the community has a right to be protected SUPREME COURT OF THE UNITED STATES,

in the enjoyment of his property.

His objections
JANUARY 5, 1885,

were overruled by the highest court of New Hamp-
HEAD V. AMOSKEAG MANUFG Co.*

shire, and final judgment was entered adjudging that A statute of a State authorizing, any person to erect

the facts alleged in the petition were true, and that and maintain on his owu land a water-mill and • upon payment or tender of the damages assessed by mill-dam upon and across any stream not navigable, pay- the verdict, with interest, and fifty per cent added, ing to the owners of lands flowed damages assessed in a judicial proceeding, does not deprive them of their prop.

making in all the sum of $572.43, the company have the erty without due process of law, in violation of the four- right to erect and maintain the dam, and to flow his teenth amendment of the Constitution of the United

land forever to the depth and extent to which it might States.

or could be flowed or injured thereby. 56 N. H. 386, *S, C., 5 Sup. Ct. Rep. 441,

and 59 id. 332, 503.

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The position that the plaintiff in error has been de- States are not so limited, either in terms or in the us-
nied the equal protection of the laws was uot insisted age under them. In Massachusetts for more than halt
upon at the argument. The single question presented a century the mill acts have been extended to mills for
for decision is whether he has been deprived of his any manufacturing purpose. Mass. St. 1824, ch. 153;
property without due process of law, in violation of Wolcott Woolen Manufacturing Co. v. Upham, 5 Pick.
the fourteenth amendment of the Constitution of the 292; Palmer Co. v. Ferrill, 17 id. 58, 65. And through-
United States. It is only as bearing upon that ques- out New England, as well as in Pennsylvavia, Vir-
tion that this court, upon a writ of error to a State ginia, North Carolina, Kentucky, and many of the
court, has jurisdiction to consider whether the statute / western States, the statutes are equally comprehen-
conforms to the onstitution of the State. The cbar- | sive.
ter of the Amoskeag Manufacturing Company, which It has been held in many cases of high authority
authorized it to erect and maintain its mills and dam, that special acts of incorporation, granted by the Leg-
gave it no right to flow the lands of others. Eastman islature for the establishment of dams to increase and
5. Amoskeag Manufacturing Co., 44 N. H. 143. The improve the water-power of rivers and navigable
proceedings in the State court were had under the waters, for mechanical and manufacturing purposes,
general mill act of New Hampshire, which euacts that

are for a public use. Scudder v. Trenton Delaware auy person or any corporation authorized by its char

Falls Co., Saxt. 694, 728, 729; Boston & R. Mill Corp. ter so to do may erect or maintain on his or its own

v. Newman, 12 Pick. 467; Hazen v. Essex Co., 12 Cush. laud a water-mill and mill-dam upon any stream pot 475; Com. v. Essex Co., 13 Gray, 239, 251, 252; Hannavigable, paying to the owners of lands flowed the kins v. Lawrence, 8 Blackf. 266; Great Falls Manuf'g damages which, upon a petition filed in court by either Co. v. Fernald, 47 N. H. 444. In some of those cases party, may be assessed by a committee or by a jury for the authority conferred by general mill acts upon any the flowing of the lands to the depth and extent to

owner of land upon a stream to erect and maintain a which they may or can be flowed by the dam. N. H. mill on his own land and to flow the land of others, St. 1868, ch. 20.

for manufacturing purposes, has been considered as The plaintiff in error contends that his property has resting on the right of eminent domain, by reason of been taken by the State of New Hampsbire for private the advantages inuring to the public from the improveuse, and that any taking of private property for pri- ment of water-power and the promotion of manuvate use is without due process of law.

factures. See also Holyoke Co. v. Lyman, 15 Wall. The defendant in error contends that the raising of 500, 506, 507; Beekman v. Saratoga & S. R. Co., 3 Paige, a water-power upon a running stream for manufac- 45, 73; Talbot v. Hudson, 16 Gray, 417, 4:26. And the turing purposes is a public use; that the statute is a

validity of general mill acts, when directly controconstitutional regulation of the rights of riparian verted, has often been upheld upon that ground, conowners, and that the remedy given by the statute is

firmed by long usage or prior decisions. Jordan v. due process of law. General mill acts exist in a great Woodward, 40 Me. 317; Olmstead v. Camp, 33 Conn. majority of the States of the Union. Such acts, au

532; Todd v. Austin, 34 id. 78; Venard v. Cross, 8. thorizing lands to be taken or flowed in invitum, for Kan. 248; Harding v. Funk, id. 315; Miller v. Troost, the erection and maintenance of mills, existed in Vir- 14 Minn. 365 (Gil. 282); Newcomb v. Smith, 1 Chaud. 71 ginia, Maryland, Delaware and North Carolina, as well (2 Pin. 131); Fisher v. Horicon Co., 10 Wir. 351; Babb as in Massachusetts, New Hampshire, and Rhode V. Mackey, id. 371; Burnham v. Thompson, 35 Iowa, Island, before the declaration of independeuce; and 421. exist at this day in each of these States, except Mary.

In New Hampshire, from which the present case land, where they were repealed in 1832. One passed

comes, the Legislature of the province in 1718 passed in North Carolina in 1777 has remained upon the stat

an act (for the most part copied from the Massachuute book of Tennessee. They were enacted in Maine,

setts act of 1714) authorizing the owners of mills to Kentucky, Missouri and Arkansas soon after their ad

flow lands of others, paying damages assessed by a mission into the Union. They were passed in Indi jury. The act of 1718 continued in force until the ana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, adoption of the Constitution of the State in 1784, and Minnesota, Mississippi, Alabama and Florida while afterward until June 20, 1792, and was then repealed, they were yet Territories, and re-enacted after they

upon a general revision of the statutes, shortly before became States. They were also enacted in Pennsylva- the State Constitution of 1792 took effect. The pronia in 1803, in Connecticut iu 1861, and more recently

visions of the bill of rights, on wbich the plaintiff in iu Vermont, Kansas, Oregon, West Virginia and Geor

error relied in the court below, were exactly alike in gia, but were afterward repealed in Georgia.

the two Constitutions. Special acts, authorizing the [Omitting references to State statutes. ] lu most of those states their validity has been as- flowing of lands upon the payment of damages, were sumed without dispute, and they were never adjudged passed afterward from time to time; among others,

the statute of July 8, 1862, authorizing the Great Falls to be invalid anywhere until since 1870, and then in three States only, and for incompatibility with their

Manufacturing Company to erect a dam upon Salmon respective Constitutious. Loughbridge v. Harris, 42

Falls river, which was adjudged by the Supreme Judi

cial Court of New Hampshire in 1867, in an opinion deGa. 500; Tyler v. Beacher, 44 Vt. 618; S. C., 8 Am. Rep. 398; Ryerson v. Brown, 35 Mich. 333; S. C., 24

livered by Chief Justico Perley, to be consistent with

the Constitution of that State, because the taking auAm. Rep. 661. The earlier cases in Tennessee, Ala

thorized was for a public use. Great Falls Manuf's bama and New York containing dicta to the same effect,

Co. v. Fernald, 47 N. H. 444. The statute now in ques. were decided upon other grounds. Harding v. Goodlett, 3 Yerg. 41; Memphis City R. Co. v. Memphis, 4 tion, the first general mill act passed by the Legislature Cold. 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms

of the State, was passed and took effect on July 3, v. Brewer, 54 id. 288; Hay v. Cohoes Co., 3 Barb. 42, 47,

1868; was held in Ash v. Cummings, 50 N. H. 591, after and 2 N. Y. 159. The principal objects no doubt of

elaborate argument against it, to be constitutional, the earlier acts were grist-mills, and it has been gener

upon the ground of the decision in Great Falls Manuf'g ally admitted, even by those courts which have enter

Co. v. Fernald, and was enforced without question in tained the most restricted view of the legislative

Pollard v. Moore, 51 N. H. 188, and in Town v. Faullpower, that a grist-mill which grinds for all comers at

ner, 56 id. 255. In the case at bar, and in another case tolls fixed by law is for public use.

See also Blair y.

siuce, the State court held its constitutiouality to be Cuming Co., 111 U. 8. 363. But the statutes of many

settled by the former decisions. Amoskeag Manuf g

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Co. v. Head, 56 N. H. 386, and 59 id. 332, 563; Same v. proportion to the benefits received, have been often Worcester, 60 id.522.

upheld, independently of any effect upon the public The question whether the erection and maintenance health, as reasonable regulations for the general adof mills for manufacturing purposes under a general vantage of those who are treated for this purpose as mill act, of which any owner of land upon a stream not owners of a common property. Coomes v. Burt, 22 navigable may avail himself at will, can be upheld as a Pick. 422; Wright v. Boston, 9 Cush. 233, 241; Sherman taking, by delegation of the right of eminent domain, v. Tobey, 3 Allen, 7; Lowell v. Boston, 111 Mass. 454, of private property for public use, in the constitutional 469; French v Kirkland, 1 Paige, 117; People v. Brooksense, is so important and far reaching, that it does | lyn, 4 N. Y. 419, 438; Coster v. Tide-Water Co., 3 C. E. not become this court to express an opinion upon it,Green, 54, 68, 518, 531; O'Reilly v. Kankakee Valley when not required for the determination of the rights of Draining Co., 32 Ind. 169. the parties before it. We prefer to rest the decision of By the maritime law, based, as Lord Tenterden obthis case upon the ground that such a statute, consid served, on the consideration that the actual employered as regulating the manner in which the rights of ment of ships is “ a matter, not merely of private adproprietors of lands adjacent to a stream may be as. vantage to the owners, but of public benefit to the serted and enjoyed, with a due regard to the interests State," and recognized in the decisions and the rules of all, and to the public good, is within the constitu- of this court, courts of admiralty may, when the part tional power of the Legislature. When property in owuers of a ship cannot agree upon her employment, which several persons have a common iuterest cannot authorize the majority to send her to sea, on giving be fully and beneficially enjoyed in its existing condi- security to the dissenting minority to bring back and tion, the law ofteu provides a way in which they may restore the ship, or if she be lost to pay them the value compel one another to submit to measures necessary of their shares; and in such case the minority can to secure his beneficial enjoyment, making equitable neither recover part of the profits of the voyage por compensation to any whose control of or interest in compensation for the use of the ship. Abb. Shipp., pt. the property is thereby modified.

1, ch. 3, SS 2, 3; The Orleans, 11 Pet. 175, 183; Rule 20, In the familiar case of land held by several tenants in admiralty, 3 How. 7; The Marengo, 1 Low. 52. It in common, or even by joint tenants with right of sur- the part owners are equally divided in opinion upon vivorship, any one of them may compel a partition, the manner of employing the ship, then according to upon which the court, if the land cannot be equally the general maritime law, recognized and applied by divided, will order owelty to be paid, or in many Mr. Justice Washington, the ship may be ordered to States, under statutes the constitutionality of which be sold and the proceeds distributed among them. has never been denied, will, if the estate is such that The Seneca, 18 Am. Jur. 486; S. C., 3 Wall., Jr., 395. it cannot be divided, either set it off to one and order See also Story Partn., § 439; The Nelly Schneider, 3 him to compensate the others in money, or else order | Prob. Div. 152; S. C., 32 Moak Eng. 76. the whole estate to be sold. King v. Reed, 11 Gray, But none of the cases thus put by way of illustra490; Bentley v. Long Dock Co., 1 McCart. 480; S. C., tion so strongly call for the interposition of the law as on appeal, nom. Manners v. Bentley, 2 id. 501; Mead v. the case before us. Mitchell, 17 N. Y. 210; Richardson v. Monson, 23 Cona. The right to the use of running water is publici juris, 94. Water rights held in common, incapable of parti-and-common to all the proprietors of the bed and tion at law, may be the subject of partition in equity, | banks of the stream from its source to its outlet. Each either by apportioning the time and extent of use, or has a right to the reasonable use of the water as it by a sale of the right and a division of the proceeds. flows past his land, not interfering with a like reason. Smith v. Smith, 10 Paige, 470; De Witt v. Harvey, 4 able use by those above or below him. One reasonable Gray, 486; McGillivray v. Evans, 27 Cal. 92.

use of the water is the use of the power inherent in At the common law, as Lord Coke tells us, “if two the fall of the stream and the force of the current to tenants in common, or joint tenants, be of an house drive mills. That power cannot be used without damor mill, and it fall in decay, and the one is willing to ming up the water, and thereby causing it to flow repair the same, and the other will not, he that is will- back. If the water thus dammed up by one riparian ing shall have a writ de reparatione facienda; and the proprietor spread over the lands of others, they could writ saith, ad reparationem et sustentationem ejusdem at common law bring successive actions against him domus teneantur; whereby it appeareth that owners for the injury so done them, or even have the dam are in that case bound pro bono publico to maintain abated. Before the mill act therefore it was often imhouses aud mills which are for habitation and use of possible for a riparian proprietor to use the watermen." Co. Litt. 200 b; 4 Kent Comm. 370.

power at all without the consent of those above him. In the same spirit the statutes of Massachusetts for The purpose of these statutes is to enable any riparian 175 years have provided that any tenant in common of proprietor to erect a mill and use the water-power of a mill in need of repair may notify a general meeting the stream, provided he does not interfere with an of all the owners for consultation, and that if any one earlier exercise by another of a like right, or with any refuses to attend, or tu agree with the majority, or to right, of the public; and to substitute, for the com. pay his share, the majority may cause the repairs to be mon-law remedies of repeated actions for damages and made, and recover bis share of the expenses out of the prostration of the dam, a new form of remedy, by mill or its profits or earnings. Mass. Prov. St. 1709, which any one whose land is flowed can have assessed, ch. 3, 1 Prov. Laws (State ed.), 641, and Ano. Chart. once for all, either in a gross sum or by way of annual 388; St. 1795, ch. 74, $8 5-7; Rev. St. 1836, ch. 116, 88 damages, adequate compensation for the injury. 44-58; Gen. St. 1860, ch. 149, SS 53-64; Pub. St. 1882, ch. This view of the principle upon which general mill 190, SS 59-70. And the statutes of New Hampshire for acts rest has been fully and clearly expounded in the more than eighty years have made provisions for com

judgments delivered by Chief Justice Shaw in the Supelling the repair of mills in such cases.

Roberts v.

preme Judicial Court of Massachusetts. Peavey, 7 Fost. 477, 493.

In delivering the opinion of the court in a case deciThe statutes which have long existed in many States ded in 1832 he said: “The statute of 1796 is but a reauthorizing the majority of the owners in severalty of vision of a former law, and the origin of these regulaadjacent meadow or swamp lands to have commission. tions is to be found in the provincial statute of 1714. ers appointed to drain and improve the whole tract by They are somewhat at variauce with that absolute cutting ditches or otherwise, and to assess and levy right of dominion and enjoyment which every proprithe amount of the expense upon all the proprietors in etor is supposed by law to have in his own soil; and in

ascertaining their extent it will be useful to inquire sion in other authorities. Lowell v. Boston, 111 Mass.
into the principle upon which they are founded. We 464-466; 8. C., 15 Am. Rep.39; U. S. v. Ames, 1 Wood.
think they will be found to rest for their justification & M. 76, 88; Waddy v. Johnson, 5 Ired. Law, 333, 339;
partly upon the interest which the community at Jones v. Skinner, 61 Me. 25, 28; Olmstead v. Camp, 33
large has iv the use and employment of mills, avd Conn. 547, 550; Chief Justice Red field, in 12 Am. Law
partly upon the nature of the property, which is often Reg. (N. S.) 498-500. And no case has been cited in
60 situated that it could not be beneficially used with- which it has been considered and rejected.
out the aid of this power. A stream of water often Upou principle and authority therefore, independ-
runs through the lands of several proprietors. One ently of any weight due to the opinions of the courts
may have a sufficient mill site on his own land, with of New Hampshire and other States, maintaining the
ample space on his own land for a mill-pond or reser- validity of general mill acts as taking private property
voir, but yet, from the operation of the well-known for public use, in the strict constitutional meaning of
physical law that fluids will seek and find a level, he that phrase, the statute under which the Amoskeag
oannot use his own property without flowing the water Manufacturing Company has flowed the land in ques-
back more or less on the lands of some other proprie- tion is clearly valid as a just and reasonable exercise
tor. We think the power given by statute was iu- of the power of the Legislature, having regard to the
tended to apply to such cases, and that the Legislature public good, in a more general sense, as well as to the
meant to provide that as the public interest in such rights of the riparian proprietors, to regulate the use
case coincides with that of the mill-owner, and as the of the water-power of running streams, which without
mill-owner and the owner of lands to be flowed caunot some such regulation could not be beneficially used.
both enjoy their full rights without some interference The statute does not authorize new mills to be erected
the latter shall yield to the former, so far that the for- to the detriment of existing mills and mill privileges.
mer may keep up his mill and head of water, notwith- | And by providing for an assessment of full compensa-
standing the damage done the latter, upon payment of tion to the owners of lands flowed, it avoids the diffi-
an equitable compensation for the real damage sus-culty which arose in the case of Pumpely v. Green Bay
tained, to be ascertained in the mode provided by the Co., 13 Wall. 166. Being a constitutional exercise of
statute." "From this view of the object and purpose legislative power, and providing a suitable remedy by
of the statute, we think it quite manifest that it was trial in the regular course of justice, to recover com-
designed to provide for the most useful and beneficial pensatiou for the injury to the land of the plaintiff in
occupation and enjoyment of natural streams and error, it has not deprived him of his property without
water-courses, where the absolute right of each pro- due process of law, in violation of the fourteenth
prietor to use his own land and water privileges,at his amendment of the Constitution of the United States.
own pleasure, cannot be fully enjoyed, and one must Walker v. Sauvinet, 92 U. S. 90; Davidson v. New Or-
of necessity in some degree yield to the other.Fiske leans, 96 id. 97; Hurtado v. California, 110 id. 516;
v. Framingham Manuf'g Co., 12 Pick. 68, 70-72.

Hugar v. Reclamation Dist., 111 id. 701.
In another case, decided almost twenty years later,

Judgment affirmed.
he said: “The relative rights of land owners and mill.
owners are founded on the established rule of the com-
mon law that every proprietor through whose territory | NEW YORK COURT OF APPEALS ABSTRACT.
a current of water flows in its course toward the sea
has an equal right to the use of it for all resonable and PLEADING-PARTIES-- SUBSTITUTION OF SHERIFF'S
beneficial purposes, including the power of such stream INDEMNITORS-CODE Cıv. PROC., § 1421 STRICTLY
for driving mills, subject to a like reasonable and bene- CONSTRUED.--Section 1421 et seq. of Code of Civ. Proc.,
ficial use by the proprietors above and below him on authorizing the substitution of the indemnitors of a
the same stream. Consequently no one can deprive sheriff as defendants in an action brought to recover
another of his equal right and beneficial use by cor- personal property levied upon by him by virtue of an
rupting the stream, and by wholly diverting it, or stop- attachment or execution, or to recover damages for
ping it from the proprietors below him, or raise it ar- such a levy, are new and constitute a serious and im
tificially, so as to cause it to flow back on the land of portant innovation upon the law as it stood previous
the proprietor above. This rule in this Commonwealth to their enactment. Their constitutionality has been
is slightly modified by the mill acts, by the well-known seriously questioned heretofore in this court, and was
provision that when a proprietor erects a dam on his affirmed by us only after much hesitation and by a
own land, and the effect is by the necessary operation divided court. This statute is clearly in derogation of
of natural laws that the water sets back upon some the common law and common right, and by settled
land of the proprietor above-a consequence which he rules of interpretation must be strictly construed, and
may not propose as a distinct purpose, but cannot pre- not extended beyond its express provisions and clear
vent-he shall not thereby be regarded as committing import. McCluskey v. Cromwell, 11 N. Y. 593 ; Sprague
a tort, and obliged to prostrate his dam, but may keep v. Birdeall, 2 Cow. 419; 4 Mass. 145, 473. If the terms
up his dam, paying annual or gross damages, the in which it is couched are susceptible of two interpre-
equitable assessment of which is provided for by the tations, that one must be adopted which conforms
acts. It is not a right to take and use the land of the most nearly to the rules of the common law and en-
proprietor above against his will, but it is an authority chroaches the least upon the individual rights affected
to use his own land and water privilege to his own ad- | by it. The propriety of the legislation in question was
vantage and for the benefit of the community. It is a sought by the codifiers to be made to appear by a re-
provision by law for regulating the rights of proprie- ference to the case of Peck v. Acker, 20 Wend. 605,
tors on one and the same stream, and from its rise to whero it was held that an officer sued for an official
its outlet, in a manner best calculated on the whole to act has the right to appoint his own attorney, and
promote and secure their common rights in it.” Bates manage the defense, notwithstanding he has been
p. Weymouth Iron Co., 8 Cush. 548, 552, 553.

fully indemnified by the party whose process he was Other opinions of Chief Justice Shaw illustrate the executing, and such party desires to conduct the desame view. Williams v. Nelson, 23 Pick, 141, 143; fense. When it is considered that such party can French v. Braintree Manuf'g Co., id. 216, 218, 221; easily attain the same advantage in all cases where it Cary v. Daniels, 8 Metc. 466, 476, 477; Murdock v. Stick- is proper that he should be exclusively entitled to demey, 8 Cush. 113, 116; Gould v. Boston Duck Co., 13 fend, by inserting a condition to that effect in his Gray, 142, 450. It finds more or less distinct expres-bond of indemnity, the reason hardly seems sufficient

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to justify so radical an encroachment upon the rights that the proposed erections would occasion but a triof a party whose property has been unlawfully seized. fling obstruction of the streets, as this was not for the Preston v. Yates, 17 Hun, 92. The act is one of doubt- trustees or the court to determine. After a careful ful propriety, and the cases must be rare when any examination of the provisions of the act of 1867, ch. useful purpose cau be served by depriving a party of 399, we think it is very manifest that while the Legishis lawful remedy against the individual who injured lature intended to confer absolute authority for the him, and compelling him to litigate his demands with building of the bridge through such streets as might persons who were not apparently participants in the be required upon payment of compensation to abutwrong out of which his action arose, and as to whose ting owners, it is also apparent that they designed to liability and its extent many embarrassing questions protect the public streets and the crossing of the same, may arise. A wide latitude is conferred by the law by positive and clear restrictions. These restrictions upon the court in granting or refusing the substitu- are equally applicable to all streets which necessarily tions provided for by the act, and many cases must were to be crossed by the bridge, and no distinction arise where, in the exercise of a sound discretion, the can be made in favor of any portion of the bridge or substitution applied for should be refused. Voyes v. its approaches which authorizes a disregard of the Davidson. Opinion by Ruger, C. J.

statute. It must be interpreted according to the or[Decided Jan. 20, 1885.1

dinary rules applicable to the construction of statutes,

and we are not at liberty to consider the advantages JUDICIAL SALE — ATTACHMENT –

arising from the plan of the relators, or the necessity CHASER-CODE Cıv. PROC., $ 1370 --- EXECUTION MUST and importance of carrying it into effect for the benefit CONFORM TO STATUTE.—The court in both cases pro- of the public. Such considerations can have no place in ceeded upon proof that the defendant, Reily, was a determining questions of the character of the one now resident of the State of New York, and had departed before us. While property devoted to one public use therefrom with intent to defraud his creditors, or to may be applied to another, this can only be done when avoid the service of a summons, or kept himself con: express authority is given for that purpose by the cealed therein with like intent. The judgment and clearest provisions of law. Streets must remain and attachment were therefore in all respects regular, and be used as such and for no other purpose until otherjustified the issuing of an execution against the prop- wise directed by legislative enactment. Without this erty of the defendant. But the statute prescribes the no authority exists for their invasion, or appropriaform of the execution where a warrant of attachment tion for a different purpose. The authority claimed bas been issued, and levied by the sheriff. Code of by the relator was not conferred by the act in quesCiv. Proc., $ 1370. The execution issued did not con- tion, and the remedy is by application to the Legislaform to the statute. It commanded the sheriff to col

ture, and not to the court. People v. Thompson. Opinlect the judgment out of the attached personal prop- ion by Miller, J. erty of the judgment debtor. and if that was insuffi

[Decided Jan. 20, 1885.] cient, out of his attached real property, whereas the

EMINENT DOMAIN-GENERAL RAILROAD ACT--RIGHT case was one under the second subdivision of section 1370, by which the execution must go, first, against the

TO APPEAL FROM AWARD--PRACTICE-ORDER NOT APattached personal property, second, against the other

PEALABLE.-(1) In pursuance of an order of the Supersonal property of the judgment debtor, and lastly,

preme Court, confirming the award of commissioners against the attached real property. We are of opivion

in proceedings under the General Railroad Act, to that the execution for this reason was void. The

condemn lands belonging to the city of New York for statute is peremptory that executions in the cases

railroad purposes, the railroad company paid over the specified “must require” the sheriff to satisfy the

sum awarded to the city chamberlain, who gave his judgment in the way pointed out. The evident inten.

receipt for the same. Held, that as it did not appear tion of the subdivision was to prevent resort to the

that the city had used, or in some way interfered with real estate of an absconding or concealed debtor, resi

the money, such payment and receipt did not deprive dent here, for the satisfaction of a judgment obtained

the city of its right to appeal from the order. Act of in an action in which an attachment had been issued

1850, ch. 140, $ 17. (2) Section 18 of the act provides, against him, and levied upon his real estate, until that after the entry of the order of confirmation and after the remedy against his personal property, both

the payment or deposit of the award as directed, the attached and unattached, had been exbausted. This railroad company shall be entitled to enter upon, take is in accordance with the general policy of the law,

possession of and use the land for the purposes of its founded upon reasons less forcible perhaps now than incorporation, and that the title of the land shall then formerly, but which it is nevertheless the province of vest in it; and notwithstanding this, either party may the Legislature to preserve. It is well settled that the appeal from the order of the confirmation to the Gentitle of a purchaser in good faith of property sold on

eral Term. If there the order shall be reversed, and a execution is not affected by mere irregularities in the new appraisal ordered, the title and possession shall process. But under a void process no title can be ac

remaiu in the company, and if upon the new appraisal, quired, and the position of a bona fide purchaser under the award should be diminished, the land-owner must a void process is no better as against the real owner of refund the difference, and if it be increased, the comthe property, than that of one who purchased with pany must pay the difference. But in any event, after full knowledge of its invalidity. Wood v. Colvin, 2

the payment or deposit of the first award, the landHill, 566. Place v. Whitaker. Opinion by Andrews, J. owner has, dnring the corporate existence of the com[Decided Jan. 20, 1885.]

pany, lost all right, estate, and interest in the land, as

well as the use thereof. Matter of the N. Y., W. S. & MANDAMUS COMMISSIONERS OF PUBLIC WORKS- B. R. Co., 94 N. Y. 287. The statute notwithstanding PERMIT TO BRIDGE COMPANY.—In this case the writ of the company takes possession of the lands and pays or mandamus issued to the commissioner of public works deposits the amount of the award, gives the right of and the department of parks of the city of New York appeal to both parties; and a construction which requiring them to grant a permit to the board of trus- would confine that right to the railroad company alone tees of the New York Bridge Company to enter upon would be most unjust. (3) This court has no jurisdiocertain streets and erect columns therein to support a tion to hear the appeal from the order of reversal. platform for the bridge over the streets was improp. Section 18 provides that on the hearing of the appeal erly granted. It could not be sustained upon the ground to the General Term, “the court may direct a new ap

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