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Opinion of Walter Jones, Esq. upon certain questions relating to the
charter of the Potomac Company. [Note. 'Tis not thought necessary to print the detailed statement which accompanied the following questions when submitted to Mr. Jones, as the principal facts are sufficiently notorious, or may be collected from the printed statement laid before Congress in 1816, by the then proprietors of the land.
There are two points established by the following opinion, well worthy the serious attention of all who are interested in the prosperity of the Potomac Company.
1. That the Company has no title, and, under the existing law, never can acquire any title, to the ground upon which the new locks (now nearly complete) have been erected, at an immense expense; and that the Company is liable, at any moment, to be ejected therefrom, at the pleasure of the proprietor.
2. That the proprietors of the land through which the canal passes are already well entitled to use the great supply of water discharged upon their land, and may be secured in the enjoyment of it without compensation to the Company. Now, it is notorious that the waste water thus thrown upon the land of the proprietors, and which must continue to be thrown there, is capable of an extensive and very profitable application to water-works.
When it is recollected, in addition, that the old locks have lately fallen down, so that the canal is rendered impassable until the Company shall either erect new locks upon the old site, or go on to finish the new locks upon ground which they hold at the mere will and pleasure of the proprietor, it will be obvious how essentially, the most important and vital interests of the Company must depend upon the discretion and judgment with which the proposals of the proprietors for purchasing the use of the surplus water are to be treated by those entrusted with the management of the Company's
On that account it is strongly recommended, and greatly to be desired, that all those persons holding and representing large interests in the Company, should attend the next general meeting in person, and judge and decide for themselves, trusting as little as possible to the agency of proxies in so momentous a question.]
Questions submitted to Mr. Jones, as connected with the accompanying
statement, by J. K. Smith. 1. Is not the charter from the States of Virginia and Maryland to the Potomac Company in the nature of a compact, and not repealable in either State, without the concurrence of the other?
2. Can the Company, after having acquired, by purchase or condemnation, a site for the canal, locks, and other works; after having led the canal through, and so far completed it; change the course of it, and proceed to condemn any other part of the land through which the canal has already passed, for any purpose whatever?
3. Is the condemnation of the 151 square perches of land, described in the inquisition of the 230 June, 1812, valid, under the circumstances of that proceeding? Was it then, or is it now, competent for the Company, by any process whatever, to condemn that land, either for the purpose expreused, or for any other whatever? If not, what remedy has the proprietor:
4. The Company having condemned a new site for their locks, canal, &c. does not the old site', before condemned, revert to the original proprietor?
5. Aro not the proprietors of the lands through which the canal passes, entitled to the surplus water, (over and above what can be used for naviga- · 10n) for the purposes of mills, forges, and other water-works, proper sites for which may be found on such lands? May they noi, at their own cost and charge, enlarge the canal, in order to admit a freer access and greater. volume of water; and draw the surplus water, at pleasure, from such points as they may find most convenient; and that without the consent of the Com-' pany: provided the canal suflers no damage, and incurz no risk thereby? Or by what other means may the proprietors obtain the benefit of the surplus water actually passing through the canal, or capable of being made to pass through it?
6. If the proprietors should take the water from the canal, in the manner suggested in the preceding questior., without the consent of the Company, and it should be decided that they were not strictly justified in so doing, whai, in case of a suit by the Company, would be the measure of the damages, the injury actually sustained by the Company, or the advantage gaired by the proprietors?
7. Is not a person who is in possession of the land, with a good equitable title, secured by bond of conveyance, such a proprietor, within the meaning, of the 13th section, as the President and Directors are authorized to enter into reasonable agreements with, for the use of the surplus watër, although the legal lille be incomplete?
8. Are not the President and Directors authorized to enter into agresments for the use of the surplus water, with any one or more of the proprietors of contiguous sites, without the concurrence, or any corresponding agreement with the other proprietors of the other contiguous sites to which the surplus water of the canal might be applied?
9. llas the company any right to discharge the waste water from the canal upon the lands of the adjacent proprietors? Are not the proprietors entitled to damages for the injuries sustained in consequence of such discharge of water upon their lands; or to compel the company to shut up and secure the sluices that have been opened for the purpose of discharging the. waste water? and may the present proprietors recover damages for the injuries done to the land while in the hands of the former proprietors, from whom they derived their title?
10. Are not the proprietors entitled to the water discharged upon their lands through the sluice-gates made by the company in their canal, for the discharge of the waste water and may they not take it up and apply it to all the uses of which their sites are susceptible, as soon as it reaches their land? If the proprietors should apply such waste water to the purposes of mills, &c. could the company, at pleasure, close up the sluices, and deprire the proprietors of the water, though it should not be requisite for the purposes of navigation?
11. Is not the company bound to return to the proprietors the water of such ancient streams as are intercepted by the canal?
In answering the questions proposed by Mr. Smith, the principle laid down by Mr. Marshall, in the opinion which has been furnished me, will be assumed as one sound and unquestionable upon every point to which it applies, viz: that every law which goes to wrest from individuals their property against their consent, with or without compensation, being made in derogation of private rights, and out of the ordinary course of legislation, must be construed strictly in favor of the individual, and rather narrowed than extended in its operation.
Question 1. Answer. The charter is certainly in the nature of a contract betweer the two States and the individuals composing the company; and,
therefore, is irrepealable by both or either of the States, solong as the parties · conform to the conditions of the grant. 'Tis also in the nature of a compact
between the respective States; and, therefore, cannot be repealed or altered by either, without the concurrence of the other; and so it has always been considered and treated by the respective States; the Legislature of each making the force and operation of every successive amendment to depend upon the event of the other State's passing a concurrent act.
Question 2. Answer. I entirely co:cur with Mr. Marshall's opinion upon this point.
When the company has once made its selection of the course of the canal, purchased or condemned the land for the site, and actually conducted the canal through, the power is so far executed and determined. They cannot return and condemn another part of the land through which the canal has already passed, for any purpose whatever but that of erecting certain (necessary buildings" at or near such places as are designated in the original charter for the receipt of tolls.
Question 3. Answer. It may be premised that there are defects and irregularities apparent upon the face of the proceedings, fatal to this inquisition, as an actual condemnation of the land in question: the most obvious of those
defects is the omission to swear the jury in the terms prescribed by the act s of Assembly. 'Tis also clear that the condemnation cannot take effect, so
as to vest the title, till the condemnation-money shall be paid. But those defects, going merely to avoid the existing title claimed by the company, are comparatively unimportant, since the errors in the proceedings might be amended in a subsequent inquest; and the payment or tender of the condemnation-money would be yet in time, if in other respects the condemnation could be supported. The important objections to be now considered are those that go to the foundation of the company's right to condemn the land at all: and the following are deemed to be conclusive:
I. As a condemnation under the 11th section, it is void—Ist. For the reasons stated in answer to the preceding question, and in Mr. Marshall's opinion: the power to condemn land for the purpose “of making the canal, locks, and other works,” having been completely executed and determined, (quoad the land in question) by the previous condemnation and apropriation of the full quantum of land allowed for thosc objects; and by actually conducting the canal past the land in question. 2dly, Because the land condemned is situate a considerable distance below the head or highest access of tide-water, which is expressly fixed as the lowest terminus of the canal. II. As a condemnation under the 12th section, it is void-Ist, Bccause, in point of fact, and upon the face of the warrant, it appears the ground was wanted for the purpose (and indeed for no other purpose but that) of “making the canal, locks, and other works,” which had been provided for in the 11th section. Now, where the 12th section mentions “necessary buildings,” as the object for which the company is authorized to condcmn a quantity of land not exceeding one acre, it necessarily refers to some description of buildings” other than the works that had before been provided for in the preceding sections. 'Tis probable the marginal note in the printed editions of the charter truly indicates the view of the Legislature, when it specifies “toll-houses” as the object intended by the indefinite phrase “necessary buildings.” But whatever was the nature of the buildings in contemplation, 'tis clear it could not comprehend any thing that formed a constituent and essential part of the canal, or of the locks, or of any other works comprised in the idea of a navigable canal. Some building merely collateral and accessorial to the main work was evidently all that was in contemplation. In fact, it appears that the only use to which this last condem. nation has been applied, or is fit to be applied, is for the canal itself, and the locks: that the ground was utterly unfit for human habitation; of course, for the site of a toll-house; and that, accordingly, no tollhouse has been built upon it; but is still retained upon the ground originally condemned, under the 11th section, for 6 the canal, locks, and other works.” It may here be remarked, that the objects for which the privilege of condemnation was conferred by these two sections, appear to have been completely inverted and misapplied; and that the law never would sustain a condemnation, unless made bona fide to subserve the real objects pointed out in the charter. Such an sbuse of the privileges of the charter never could be tolerated, as to make it the mere color or pretext for condemning land ostensibly for one purpose, but really for some other distinct and collateral object. The circumstances under which this condeme nation are stated to have taken place, would seem to indicate a design to acquire more land than could be requisite for the primary and legitimate objects of the company; inasmuch as it had been experimentally demonstrated that the first condemnation had given them ample space for every such object, whether the canal, the locks, or other works essentially incident to a canal, or toll-houses, or any other collateral appendages. 2dly, Because the ground conprised in this condemnation, is not “at or near” any one of the three places designated in the charter for the receipt of tolls; as is indispensably required to bring the condemnation within the terms of the 12th section.
If those objections be well founded (and they appear to me to be altogether insuperable) it necessarily follows, that not only is the condemnation, as it now stands, null and void, and utterly incompetent to convey any title to the company; but that it was and is utterly incompetent for the company, as the law now stands, to obtain a condemnation of the land in question, by any form of proceeding, or for any purpose whatever.
The remedy for the proprietor of the land taken under the void condemnation, is ejectment or trespass.
Question 4. Answer. It being clear that the company acquired no title by the last condemnation, it follows that the title in fee simple, acquired by the former comdemnation, remains unimpeached, if, in other respects, it be unexceptionable. If, however, an opposite opinion were to prevail, so as to determine the last condemnation to be regular, and to vest a good title, then, without doubt, the former condemnation would be deemed to have been virtually relinquished, and the ground covered by it to have reverted to the original owner. Otherwise, it is not conceivable what limitation there could be to the extent of the company's acquisitions, by means of suc
cessive condemnations. The limitation, by the charter, is 200 feet in width: if that may be exeeded by one acre, as in the present instance, the limitation becomes utterly useless and nugatory.
Question 5. Answer. The 15th section not only authorizes, but directs, that the surplus water, over and above what is necessary for navigation, be applied, if it can be conveniently done, to the purposes of “mills, forges, and other water-works.” The question is, what “mills, forges, and other water works?” Whether such as may be erected by the individual pro. prietors of the contiguous sites, or such as the Potomac Company may choose to erect, either on the sites that might possibly be included within the limits of what they are authorized to purchase or condemn, under the 11th and 12th sections, or on sites which they might purchase for the express purpose? I consider it perfectly clear that the only water-works in the contemplation of the law are such as may be erected by the individuals possessing the land through which the canal was to be conducted; and that the Potomac Company, in their corporate capacity, have no right to engage in any speculation in “mills, forges, or other water-works:" but if the President and Directors were to divert the capital of the company to any such objects, it would be a clear misapplication and abuse of their chartered privileges, and a breach of their official trust. All the legitimate emoluments of the company, from their capital vested in the canal, are confined to the specific tolls to be levied from those who navigate it: the only compensation they can lawfully demand, or receive, for the use of the surplus water, is, to be reimbursed a just proportion of the expense of making the canals or cuts capacious enough to answer both the purposes of navigation and of such water-works. The necessary breadth and depth of such canals or "cuts are defined and prescribed in the 17th section of ihe charter: and whether that prescribed breadth and depth be sufficient for both purposes; or whether it be necessary to make the canals or cuts still more capacious; in either case, the individual who wishes to use the water must contribute a just proportion of the expense. The last clause of the 11th section, which expressly recognizes the right and the probability of having such water-works erected by the adjacent proprietors, after the canal shall have been made; the express declaration of the intent and object of the 13th section, so unequivocally avowed in the preamble to, that section; the contribution by the proprietors to the expense of making the canal, which is required by the concluding clause of the 13th section, as the sole consideration for the use of the surplus water; and the whole tenor and spirit of the law, all clearly and conclusively show that the only improvement of sites for water-works intended to be effected by means of the surplus water from the canal, is that of the contiguous sites belonging to the individual proprietors. Indeed, so studious is the law to secure to those proprietors through whose land the canal was to pass,
the entire and exclusive use of the surplus water, susceptible of application to mills, forges, &c. that the very first enacting clause guidelines of the 13th section sets out with a positive prohibition against appropriating TANTE unless the consent of those proprietors be first had.
AV the water conveyed through the canal to any purpose but that of navigation, areszt prohibition, undoubtedly, was to prevent the company from driving barund gains with the proprietors of detached and remote sites, and abstracting the
water from the adjacent “proprietors of the land through which the canal
was to be led." The preference was justly considered as due to those prono prietors whose land was to be taken for the use of the canal; and it may