Lucas v. Ashland Light, Mill & Power Co.

Sedgwick, J.

In 1873 Oscar M. Garter prosecuted proceedings in ad quod damnum in the district court for Saunders county, and in the following year obtained a judgment in that action, establishing his right to erect and maintain a dam across Wahoo creek on certain lands then owned by him near the town of Ashland, in said county. This dam by the judgment was not to be maintained more than 15 feet high above low-water mark, and damages were allowed to the owners of certain riparian lands which it was found would be injured by raising the water to that height. This defendant succeeds to these rights by mesne conveyances. The petition in ad quod- dam-num showed that the “petitioner is erecting a grist mill on his said land, and is constructing a dam across said Wahoo creek, * * * and is excavating a mill-race for his said mill,” and prayed “that he might have leave to proceed to the construction of his said improvements.” The order of the court recited that the petitioner'had asked “for leave to build and continue his milldam at the point described in his said petition.” The jury by their verdict found that “by reason of construction and continuance of the milldam built 15 feet high above low-water mark (the defendants, naming them, would be damaged in certain amounts specified), and that the said flouring mill erected by the plaint'ifs will be of public utility.” This verdict was approved by the court, and it was ordered, among other things, that “the plaintiff be and is hereby authorized to build and continue his said mill and milldam as prayed in his said petition.” Mr. Carter thereupon built a small mill and erected a dam, and afterwards other dams which appear to have been unsubstantial and of a temporary nature. In 1889 a. substantial dam was begun, which was completed in the following year. This dam was built at considerable expense'. Many car-loads of rock were used, and this dam has continued in service and has proved to be a substantial and suitable structure. Prior to the erection of this dam, it would seem that the power had been used principally, if not entirely, for grinding grain. In 1890 electrical machinery ay as installed, and the power Avas used for furnishing electric lights for the city of Ashland and its inhabitants. In May, 1907, the mill and a large part of the machinery were destroyed by fire, and the owners of the property immediately rebuilt the building and power-house and installed new machinery therein. Since that time the power has been used for generating electricity for the city of Ashland and its inhabitants.

In December, 1907, these plaintiffs began this action in the district court for Saunders county, alleging that they were owners of riparian lands damaged by tlie maintenance of the defendant’s dam, and asking that the dam be “adjudged to be unlawful and a nuisance, and that it be abated and the defendant perpetually enjoined from maintaining it or any other dam on Wahoo creek, whereby said lands or any of them may be flooded,” and for general equitable relief.

The plaintiffs also alleged that the dam was being maintained at a greater height than alloAved by the ad quod damnum proceedings, and asked for an injunction restraining the defendant from so maintaining the dam. A temporary restraining order was issued restraining the defendant from raising or maintaining the dam above the top of the solid masonry thereof by means of flash-boards, or otherwise. The defendant answered, alleging special matters in defense, which will be stated, so far as may be necessary, in the discussion of the questions of law and fact presented in the briefs. Upon the trial the court found generally in favor of the defendant and dismissed the plaintiffs’ proceedings. The plaintiffs have appealed.

The plaintiffs insist that the dam is not now being devoted to a public use, and that “an easement for a particular purpose ceases when the purpose no longer exists,” and that, “in any event, the dam can only be maintained 15 feet above actual low-water mark;” that the dam has been substantially raised above the prescribed limits by use of “flash-boards,” which in effect added something like two feet of height to the dam. It is also insisted that some of the plaintiffs in this case are the owners of riparian lands which were not included in the acl quod damnum proceedings, and which are injured by this dam, and that such plaintiffs are entitled to relief, although others are not found to be so. The case is an important one, and some of the difficult questions presented are without precedent in this state. A reargument Avas allowed, and we have had the assistance of a thorough and able presentation of the case from both points of view.

1. The principal discussion has been in regard to the nature of the rights conferred in ad quod damnum proceedings, and in that connection, also, in regard to the limitations placed upon the legislature by the constitution. The constitution has placed certain limitations upon each of the three departments of government. Whether an attempted act of legislation is beyond its power is a question of law. The constitution makes it the duty of this court to determine questions of law that arise in litigation before it, and, when an act of the legislature is drawn in question as beyond its poAver, we cannot avoid the determination of the question so presented.

The courts have, no doubt, in some instances interfered unjustifiably with legislation. This power should be carefully guarded and judiciously used, avoiding any tendency to restrict legislation to the limits that the judges think are beneficial and desirable. This, of course, the courts have no power to do. In all questions of doubt, the legislature should determine the matter. When there is substantial and reasonable doubt, the act of the legislature must be upheld. Two objections are urged against the constitutionality of the act. The first is that the title of the act-is not broad enough to admit of legislation concerning “machinery to be propelled by water,” and that, therefore, that clause in the first section of the act has no force. The title of the act is “An act relating to mills and mill-dams.” Gen. St. 1873, ch. 44. If we consider the word “mill” in its original and first meaning, there is no doubt that it would not include “machinery to be propelled by water,” unless that machinery was to be used in grinding; the word “mill” originally meaning to grind or make fine. This word has, however, been used for many years and has now acquired a variety of uses. Webster’s Unabridged Dictionary, after defining the word “mill,” uses this language: “In modern uses the term mill includes various other machines or combinations of machinery * * * to some of which the term manufactory or factory is also applied.” And in the New International Directory this statement is changed, and the fifth definition of the word “mill” is: “A building or collection of buildings with machinery by which the processes of manufacturing are carried on.” The Standard Dictionary gives, among others, the following definitions: “(2) Any one of various kinds of machines that transform raw material by other processes than grinding into some other form; as, a sawmill ; planing-mill. * * * (5) An establishment for reducing ores by a process other than' smelting. An ironworks where the metal in the cruder forms is converted into merchant iron. (6) A building fitted up with the machinery requisite for a factory; as, a cotton-mill; woolen-mill. * * * (10) (Slang.) A pugilistic combat; set-to.” And it is stated that “mills are named from their action on the substance operated upon, and from the material or sxxbstance that they operate upon or prepare for use” — citing between 10 and 50 kinds of mills.

Tn Colorado their constitution provides that private property may be taken for private use without the consent of the owner “for private ways of necessity, and * * * for reservoirs, drains, flumes or ditches, on or across the lands of others, for agriculture, mining, milling, domestic, or sanitary purposes,” and the supreme court of that state held that, under this provision of the constitution, land could be condemned to carry water to operate an electric light plant. The court held: “The term ‘milling,’ as used in the constitution, is synonymous with the word ‘manufacturing,’ and an electric light plant is a manufacturing establishment.” Lamborn v. Bell, 32 Pac. 989 (18 Colo. 316). Our constitutional provision, that the subject of legislation must be expressed in the title of the act, is supposed to be to prevent inserting foreign matters in pending bills, and so securing ill-considered legislation. “An act relating to mills and milldams” is a comprehensive title. It permits of legislation regarding any kind of mill that uses “machinery to be propelled by. water.” We think this objection cannot- be sustained.

The second constitutional objection which the plaintiffs urge against the construction of the statute contended for by the defendant is that the legislature has no power to condemn private property for private use. The ad quod damnum act involves the exercise of the right of eminent domain, and it is contended that to generate electricity to be furnished to a city and its inhabitants is not a public use, and beyond the power of the legislature to authorize the damaging of private property for 'such purpose, and-therefore to make such use of the right obtained by ad quod damnum is to abandon the right which was originally given and was within the power of the legislature. The Massachusetts coxxrt, construing the statutes of that state, appear to have held that the provisions of the milldam act extend to mills for mechanical and manufacturing purposes as well as to those intended to serve the public for a stipulated toll, and this appears not to violate the fourteenth amendment of the federal constitution. Otis Co. v. Ludlow Mfg. Co., 201 U. S. 140. We do not find it necessary to determine or discuss this question.

Is the use that is being made of this power a public use? There is an interesting discussion of this question in 3 Farnham, Waters and Water Rights. The author severely criticises the decisions of several courts, and especially the supreme court of Massachusetts. He does not agree with that court in upholding the constitutionality of acts which allow the flowage of lands for the purpose of constructing private mills, and says: “The only things that will justify such a taking is the intention to use the power for the direct benefit of the public, as by the erection and operation of a public mill, where every one will have a right to have his work done upon payment of a toll, and which will always be under control of the legislature.” Section 697. In discussing the question Iioav far a water power can be taken under the power of eminent domain for the purpose of generating electricty, this author says: “If the electricity generated is to be subject to the common use of all who apply for it upon making reasonable compensation, it is more nearly a public use than is any other connected with the generation of power.” Section 6976. The supreme court of Minnesota has decided that “the generation of electricity by water power for distribution and sale to the general public on equal terms, subject to governmental control, is a public enterprise, and property so used is devoted to public use.” Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 5 L. R. A. n. s. 638. It was said by the supreme court of Vermont, in In re Barre Water Co., 62 Vt. 27, 20 Atl. 109: “But to say what a public use is with sufficient comprehensiveness and accuracy to meet the exigencies of all cases is, to say the least, difficult. Nor is it easier to define the limit of legislative power in respect to the right of eminent domain. This power must have some degree of elasticity, that it may be exercised to meet the demands of new conditions and improvements, and' the ever varying and constantly increasing necessities of an advancing civilization. The circumstances and requirements of the particular case, and the practice of other states and governments where constitutional limitation is placed on legislative action in this respect must .be our guides in determining what is and what is not a public use. It is sometimes easier to say what is not than to say what is.” In Traver v. Merrick County, 14 Neb. 327, this court quoted from the Massachusetts statute and the decisions of that court, apparently with approval, and it was held that bonds given in aid of a water mill were valid. It appears from the syllabus in the case, and perhaps from some of the expressions in the opinion, that the mill in question was a public mill, intended to grind for toll, but this is not treated in the opinion as necessarily a controlling matter. The case has been cited by text-writers as following the Massachusetts rule. 15 Cyc. 598. In the later case of Getchell v. Benton, 30 Neb. 870, it is held that a beet sugar manufactory, which does not manufacture sugar from beets for toll, although propelled by water power, is not within legislative control.by virtue of any law of this state, and is not a work of internal improvement. The opinion seems to put this holding upon the ground that it is not a work of public utility. Whether an undertaking is for the benefit of the people at large, and is so general in its nature that it should be regarded as a public utility, must necessarily be within the discretion of the legislature to determine, and, unless it is clearly private in its nature, the courts will not interfere with this legislative discretion. Under such circumstances, it becomes a question of ascertaining the intention of the lawmakers.

The evidence shows that this defendant is using this power to furnish the city of Ashland and its inhabitants with electricity for lighting and power purposes. It was organized for that purpose. The law requires it to furnish all applicants upon equal terms. Its business, including its rates, are subject to legislative regulation. This would seem to be a public use.

2. It is contended that the statute cannot be construed to authorize this use of the right obtained by ad quod damnum proceedings. The language of the first section of the act is a sufficient answer to this objection. “If any person, desiring to erect a dam across any water-course for the purpose of building a water grist, saw, carding, or fulling mill, or of erecting any machinery to be propelled by water, * * * he may file a petition,” etc. Comp. St. 1911, ch. 57, sec. 1. The last legislature enacted a. statute providing that cities and villages can acquire milldam sites for municipal purposes. Laws 1911, ch. 83. This is a legislative construction that such use of the ower is a public use, and clearly contemplates that rights of flowage acquired by ad quod damnum proceedings may be used for such purposes. Unless this is true, the act in its most common application would be unconstitutional.

3. It is said that “an easement for a particular purpose ceases when the purpose no longer exists,” and Gross v. Jones, 85 Neb. 77, is cited as supporting this proposition. In that case the principal question determined was whether the dam and the power generated thereby had been abandoned. It is assumed in the opinion that to maintain the dam and mill-pond for the purpose of furnishing ice would not be such a use of the right acquired as to prevent the loss of the right by abandonment for nonuser. It may be conceded that, having obtained the right of flowage of these lands for a specified public purpose, it cannot be devoted to an entirely different and private purpose, and an attempt to do so would be an abandonment of the right obtained. The question is: What must be regarded as a different purpose within the meaning of this rule? In Chicago & E. I. R. Co. v. Clapp, 66 N. E. 223 (201 Ill. 418), the supreme court of that state held: “Where a railroad company has ceased to operate a branch to a coal mine after the mine was exhausted, had taken up the tracks and nearly all the ties, removed all the crossing signs and all the cattle guards but two or three, taken out the switch ties and bridge timbers, allowed the right of way to grow up with Aveeds, and failed to keep the fences in repair, it Avas proper to submit to the jury Avhether there was an intention on its part to abandon the branch.” And the court in the opinion stated the law1' as MIoavs: “When, a corporation, in the exercise of the right of eminent domain, acquires for a public purpose a mere easement in land, its right and title to the property so acquired are dependent upon the use of the property for public purposes, and when such public use becomes impossible, or is abandoned, its right to hold the land ceases, and the property mmrts to its original owner.” There must be necessarily some substantial basis upon wrhich to determine the character of the purpose for which the right is used. The right obtained in this case wras to raise the dam to a given height for milling purposes. A change from the exclusive grinding of wdieat into flour to the grinding of corn, barley, and other grains might be in some sense applying the poAver to a different purpose, but clearly not Avithin the meaning of the limitation that we are considering. One who objected to such a change of the purpose to which the power Avas applied should suggest some substantial basis for such a distinction. Hathaway v. Mitchell, 34 Mich. 164. See, also, note, 67 L. R. A. 390. We have seen that the legislature has in the most solemn form authorized the application of rights so acquired to municipal purposes. The change is from one public use to another, and not a change from a public to a private use. The present use of the poAver is not such a change from that authorized by the ad quod, damnum proceedings as to amount to an abandonment and justify the destruction of the property. The Owners of property included in the ad, quod damnum proceedings should be allowred to recover from defendant all damages wdiicli their property has sustained by the newr use of the water poAver, if any, over and above the damages caused by the use authorized by the ad quod damnum proceedings.

4. It is urged that some of these plaintiffs were not parties to the ad quod damnum proceedings, and their lands which are injuriously affected by the flowage were not included in those proceedings, and that the trial court therefore erred in not granting such plaintiffs any relief. The fourteenth section of the act authorizes any one whose land is overflowed or injured by the maintenance of a milldam to begin proceedings under the act. Perhaps, the court intended to indicate in Kyner v. Upstill, 29 Neb. 768, that he might maintain an action for damages. This would seem to be in harmony with the holdings in Chicago, B. & Q. R. Co. v. Englehart, 57 Neb. 444, Blakeley v. Chicago, K. & N. R. Co., 25 Neb. 207, and Bronson v. Albion Telephone Co., 67 Neb. 111. He could not maintain an action to enjoin the use of the dam, and abate the same as a nuisance, after so long acquiescence under the circumstances in this case. If lands not included in the ad quod damnum proceedings are damaged by defendant’s dam and the use thereof, the owners of such land should be allowed to recover such damages.

5. The plaintiffs contend that the evidence establishes that the defendant’s darn is more than 15 feet above low-water mark, and that the use of flash-boards raises the water to a greater height than is permitted by the rights obtained by the defendant’s grantors. They do not attempt any analysis of the evidence, but they allege that the defendant’s recital of the evidence upon these points is incomplete and unfair. A large number of witnesses were examined, and the bill of exceptions is quite bulky, presenting some conflict in the testimony. It does not seem advisable to enter upon a discussion of this evidence. It seems to support the conclusions reached by the trial court. The contention of the defendant that the plaintiffs and all parties interested have consented to the use of these flash-boards, and so are now estopped to complain, does not seem to be quite consistent with the position that the defendant lias taken in urging that the use of these flash-boards has not raised the water above the prescribed limit. The defendant does not seem to he in a position to insist upon any greater rights than those acquired through the acl quod damnum proceedings. The judgment in this case is without prejudice to a future action, if it should be found that the defendant is exceeding those rights.

The writer would have affirmed the judgment of the trial court as rendered, but upon consultation we concluded that the trial court, having jurisdiction of the matter, should have retained the action for all purposes, and should have allowed the plaintiffs whose lands were not included in the ad quod damnum proceedings to recover their damages, and the plaintiffs whose lands were included in the ad quod damnum proceedings to recover such damages, if any, to the lands as were caused by the new and additional use of the dani and water power.

The judgment of the district could dissolving the injunction is affirmed, and the judgment is in other respects modified, and the cause remanded to the district court, with instructions to allow the parties to amend their pleadings, if so advised, and take further evidence, if necessary, and determine the plaintiffs’ damages as indicated in this opinion.

Judgment accordingly.

Reese, C. J., not sitting.

Letton, J.

I concur in the opinion, subject to the principles of law announced in Znamanacek v. Jelinek, 69 Neb. 110, and Arterburn v. Beard, 86 Neb. 733.