Imatges de pàgina
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pressed, 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. docs not the old site, before condemned, revert to the original proprietor?

5. Aro not the proprietors of the lands through which the canal pases, entitled to the surplus water, (over and above what can be used for boty tion) for the purposes of mills, forges, and other water-works, proper stas for which may be found on such lands? May they noi, at their own cox 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 sub punis as they may find most convenient; and that without the consent of ta 100 pany: provided the canal suffers no damage, and incurs no risk licas. Or by what other means may the proprietors obtain the benefit of the plus water actually passing through the canal, or capable of being made pass through it?

6. If the proprietors should take the water from the canal, in the mi ner suggested in the preceding questior., without the consent of the Compan ny, and it should be decided that they were not strictly justified in so doing what, in case of a suit by the Company, would be the measure of the di mages, the injury actually sustained by the Company, or the advana. gained by the proprietors?

7. Is not a person who is in possession of the land, with a good equila title, secured by bond of conveyance, such a proprietor, within the medo of the 13th section, as the President and Directors are authorized to into reasonable agreements with, for the use of the surplus watër, alles, the legal title be incomplete?

S. Are not the President and Directors authorized to enter into ments for the use of the surplus water, with any one or more of t prietors of contiguous sites, without the concurrence, or any correspa agreement with the other proprietors of the other contiguous sites the surplus water of the canal might be applied?

9. Has the company any right to discharge the waste water to canal upon the lands of the adjacent proprietors? Are not the prop entitled to damages for the injuries sustained in consequence of su charge of water upon their lands; or to compel the company to shuty secure the sluices that have been opened for the purpose of discharge waste water? andmay the present proprietors recover damages for their done to the land while in the hands of the former proprietors, from they derived their title?

10. Are not the proprietors entitled to the water discharged upor lands through the sluice-gates made by the company in their canal, discharge of the waste water? and may they not take it up and apply all the uses of which their sites are susceptible, as soon as it reaches land? If the proprietors should apply such waste water to the purpos mills, &c. could the company, at pleasure, close up the sluices, and as the proprietors of the water, though it should not be requisite for the purpo of navigation?

11. Is not the company bound to return to the proprietors the such ancient streams is are intercepted by the canal?

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" In answeringihe 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 constru• ed 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, so long 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 concur 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 conduct

ed 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 . "nécessary buildings" at or near such places as are designated in the origin· al charter for the receipt of tolls. • Question 3. Answer. It may be premised that there are defects and irre

gularities 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

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:

1. As a condemnation under the 11th section, it is void-1st. 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 appropriation of the full quantum of land allowed for those 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 ac

cess 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, Because, 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 ifth section. Now, where the 12th section mentions necessary

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buildings," as the object for which the company is authorized to condemn : 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-housesas the object intended by the indefinite phrase "* cessary buildings.” But whatever was the nature of the buildings in comtemplation, 'tis clear it could not comprehend any thing that formed a colstituent 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 w2100templation.' In fact, it appears that the only use to which this last costo nation has been applied, or is fit to be applied, is for the canal and the locks: that the ground was utterly unfit for human habitzic of course, for the site of a toll-house; and that, accordingly, no w house has been built upon it; but is still retained upon the ground originally condemned, under the 11th section, for the canal, loc and other works.” It may here be remarked, that the objects for wol the privilege of condemnation was conferred by these two sections, appear to have been completely inverted and misapplied; and that the law deve would sustain a condemnation, unless made bona fide to subserve the objects pointed out in the charter. Such an sbuse of the privileges of charter never could be tolerated, as to make it the mere color or preten condemning land ostensibly for one purpose, but really for some ou tinct and collateral object. The circumstances under which this.com nation are stated to have taken place, would seem to indicate a design quire more land than could be requisite for the primary and legitima jects of the company; inasmuch as it had been experimentally demon that the first condemnation had given them ample space for every ject, whether the canal, the locks, or other works essentially inck canal, or toll-houses, or any other collateral appendages. 2dly, bet ground conprised in this condemnation, is not "at or near" anyone three places designated in the charter for the receipt of tolls; as is to sably required to bring the condemnation within the terms of the list tion.

If those objections be well founded (and they appear to me gether insuperable) it necessarily follows, that not only is the conden as it now stands, null and void, and utterly incompetent to conveya to the company; but that it was and is utterly incompetent for the co as the law now stands, to obtain a condemnation of the land in ques, any form of proceeding, or for any purpose whatever.

The remedy for the proprietor of the land taken under the void nation, is ejectment or trespass.

Question 4. Answer. It being clear that the company acquire by the last condemnation, it follows that the title in fee simple, acq the former comdemnation, remains unimpeached, if, in other respe unexceptionable. If, however, an opposite opinion were to pre to determine the last condemnation to be regular, and to vest ag then, without doubt, the former condemnation would be deeme been virtually relinquished, and the ground covered by it to ha to the original owner. Otherwise, it is not conceivable whe there could be to the extent of the company's acquisitions, by me

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Question 5. Answer. The 15th section not only authorizes, but directs, hat the surplus water, over and above what is necessary for navigation, be pplied, if it can be conveniently done, to the purposes of “mills, forges, nd other water-works." The question is, what “mills, forges, and other rater works?” Whether such as may be erected by the individual prorietors of the contiguous sites, or such as the Potomac Company may hoose to erect, either on the sites that might possibly be included within je limits of what they are authorized to purchase or condemn, under the Ith and 12th sections, or on sites which they might purchase for the ex'ess purpose? I consider it perfectly clear that the only water-works in e contemplation of the law are such as may be erected by the individuals ossessing the land through which the canal was to be conducted; and that e Potomac Company, in their corporate capacity, have no right to engage any speculation in “mills, forges, or other water-works:" but if the Pretent and Directors were to divert the capital of the company to any such jects, it would be a clear misapplication and abuse of their chartered priviyes, and a breach of their official trust. All the legitimate emoluments

the company, from their capital vested in the canal, are confined to the ecific tolls to be levied from those who navigate it: the only compensation

y can lawfully demand, or receive, for the use of the surplus water, is, be reimbursed a just proportion of the expense of making the canals or s capacious enough to answer both the purposes of navigation and of such ter-works. The necessary breadth and depth of such canals or cuts are ined and prescribed in the 17th section of the charter: and whether that scribed breadth and depth be sufficient for both purposes; or whether it necessary to make the canals or cuts still more capacious; in either case,

individual who wishes to use the water must contribute a just proportion he expense. The last clause of the 11th section, which expressly reaizes the right and the probability of having such water-works erected :he adjacent proprietors, after the canal shall have been made; the exis declaration of the intent and object of the 13th section, so unequivoy avowed in the preamble to that section; the contribution by the protors to the expense of making the canal, which is required by the con-' ing clause of the 13th section, as the sole consideration for the use of jurplus water; and the whole tenor and spirit of the law, all clearly and lusively show that the only improvement of sites for water-works ined to be effected by means of the surplus water from the canal, is that je contiguous sites belonging to the individual proprietors. Indeed, so ous is the law to secure to those proprietors through whose land the I was to pass, the entire and exclusive use of the surplus water, suscep. of application to mills, forges, &c. that the very first enacting clause le 13th section sets out with a positive prohibition against appropriating vater conveyed through the canal to any purpose but that of navigation, 3.8 the consent of those proprietors be first had. The intent of that ibition, undoubtedly, was to prevent the company from driving bar

with the proprietors of detached and remote sites, and abstracting the • from the adjacent “ proprietors of the land through which the canal to be led.The preference was justly considered as due to those proors whose land was to be taken for the use of the canal; and it may

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fairly be inferred that the exclusive privilege of applying the surplus wa to the improvement of their sites was a part of the considerdion, super ed to the valuation by the jury, secured to them by the Legiature proces bly in consequence of some previous concert between them ao! te per contemplating the formation of the Potomac Company) for barnet ground occupied by tne canalground which had always passed peculiar advantages for every species of works requiring a great com of water, and which had been destined by the proprietors ia ferte improvements in that way, before the present canal was thought on.

I conclude that, as the President and Directors of the Poor are expressly directed by the law to permit, so thc proprie through which the canal has been conducted have a vesteid Figure and require, that the surplus water, over and above what is. navigation, be applied to the improvement of their sites for mili two conditions: Ist, that the relative situation of things renders ble and convenient to be done, without deterioration to the main of the canal; and, 2ndly, that they pay a just proportion of to making the canal, &c. Still, I do not conceive that the proprie contiguous land could, in strictness, be justified in making, of authority, and without the consent of, or any previous agreement company, any alteration of the canal, or cutting into it, for the letting themselves into the enjoyment and benefit of the surplus

The question then recurs-how are the contiguous propriel into the enjoyment of this vested right, if the President and Dire wilfully and obstinately refuse to entertain any amicable treat ject, or to enter into any reasonable agreement? The Leg ceiving that it was so clearly the reciprocal interest of both par tuate the object, and to adjust the terms amicably between !! not anticipating the possibility of any such perverse and inja istration of the affairs of the company as a wilful and caprint to such improvements, has not provided any specific remer But the municipal law of the land is perfectly competent to aid of the particular statute. If it be once ascertained that vested a rignt, for the full enjoyment of which a specific and a dy is wanted, the court of chancery would afford the remeds," the company to execute, bona fide, the intent of the statute. stance which is stated, of the company's having been obliged to in the canal, and to discharge continually great quantities o upon the lands of the adjacent proprietors, affords so clear å demonstration of the conveniency and advantage with which veyed through the canal may be applied both to the purposes, and of water works, without any possible detriment or risk to 1 if the proprietors could make out the other part of their caset tion of the court, viz: a refusal on the part of the company to and reasonable terms, then the strongest possible case, as I co be made out for compelling the President and Directors to liquidation of the just proportion of the expense properly chara proprietors; and, indeed, for a court of chancery to direct quantum meruit, to be tried by a jury.

Question 6. Answer: The measure of damages for trespas perty is usually the degree of injury done to the property; but of wilful and malicious trespass, the jury may, in their dis

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