Commonwealth v. Stevens , 27 Mass. 247 ( 1830 )

Per Curiam.

The Court are of opinion that the provisions of the acts for the support and regulation of mills, cannot be so construed as to justify or excuse the erection of a dam, in such manner as to overflow a public highway, already appropriated and in actual use, and thereby render it impassable. The object of the act (St. 1795, c. 74,) as also of the provincial act, was the encouraging the building of mills, serviceable for the public good and benefit of the town, and probably no conflict was anticipated between public-spirited proprietors of mills, having these objects in view, and those who might represent and manage other public interests. The mischief intended to be guarded against was the expense and vexation arising from a multitude of actions for damages to be brought by private owners of land. All the detailed provisions of the acts, go to show that such was the intent of the framers ; and there being no provision made for an indemnity to the public, it seems manifest, that no encroachment on the public rights was intended to be sanctioned. If public policy and consistency of the power contended for with other existing privileges, require a further extension of the provisions of the mill acts, it is a question of legislative, not of judicial consideration. We are satisfied that the existing provisions of these laws do not warrant the acts done by the defendant, and furnish no legal ground of defence against the indictment for a nuisance, with which he stands charged.