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fairly be inferred that the exclusive privilege of applying the surplus water to the improvement of their sites was a part of the consideration, superadded to the valuation by the jury, secured to them by the Legislature i probably in consequence of some previous concert between them and the persons contemplating the formation of the Potomac Company) for haring their ground occupied by tne canal--ground which had always possessed very peculiar advantages for every species of works requiring a great commanil of water, and which had been destined by the proprietors to very extensive improvements in that way, before the present canal was thought of.
I conclude that, as the President and Directors of the Potomac Company are expressly directed by the law to permit, so the proprietors of the land through which the canal has been conducted have a vested right to demand and require, that the surplus water, over and above what is necessary for navigation, be applied to the improvement of their sites for mills, &e. upon two conditions: Ist, that the relative situation of things renders it practicable and convenient to be done, without deterioration to the main purposes of the canal; and, 2ndly, that they pay a just proportion of the expense of making the canal, &c. Still, I do not conceive that the proprietors of the contiguous land could, in strictness, be justified in making, of their own authority, and without the consent of, or any previous agreement with, the company, any alteration of the canal, or cutting into it, for the purpose of letting themselves into the enjoyment and benefit of the surplus water.
The question then recurs--how are the contiguous proprietors to be let into the enjoyment of this vested right, if the President and Directors should wilfully and obstinately refuse to entertain any amicable treaty on the subjcct, or to enter into any reasonable agreement? The Legislature, perceiving that it was so clearly the reciprocal interest of both parties to effectuate the object, and to adjust the terms amicably between themselves; and not anticipating the possibility of any such perverse and injudicious admitistration of the affairs of the company as a wilful and capricious obstructioa to such improvements, has not provided any specific remedy for such a case But the municipal law of the land is perfectly competent to afford relief is aid of the particular statute. If it be once ascertained that the statute has vested a right, for the full enjoyment of which a specific and adequate remedy is wanted, the court of chancery would afford the remedy, by compelling the company to execute, bona fide, the intent of the statute. The circumstance which is stated, of the company's having been obliged to open sluices in the canal, and to discharge continually great quantities of waste water upon the lands of the adjacent proprietors, affords so clear and practical a demonstration of the conveniency and advantage with which the water conveyed through the canal may be applied both to the purposes of navigation and of water works, without any possible detriment or risk to the canal, that, if the proprietors could make out the other part of their case to the satisfartion of the court, viz: a refusal on the part of the company to accede to jus and reasonable terms, then the strongest possible case, as I conceive, wou: be made out for compelling the President and Directors to go into a far liquidation of the just proportion of the expense properly chargeable to the proprietors; and, indeed, for a court of chancery to direct and issue of quantum meruit, to be tried by a jury.
Question 6. Answer: The measure of damages for trespasses upon property is usually the degree of injury done to the property; but in some cases of wilful and malicious trespass, the jury may, in their discretion, gire vit.
dictive or exemplary damages. In the particular case supposed, the quantum of damages would mainly depend upon the question, which of the partics could put the other in the wrong. If the jury could be satisfied that the plaintills had arbitrarily rejected fair and reasonable terms of agreement, and that the defendant had merely pursued an irregular mode of coming at what was substantially his right, the damagas would, in all probability, be merely nominal.
Question 7. Answer. I consider the affirmative of this question as quite clear.
Question S. Answer. The äffirmative of this question is equally clear as the last. The first enacting cause of the 18th section, which prohibits the application of the water conveyed through the canal to any purpose but navigation, without the consent of those persons owning the land through which the canal was to be led, has already been explained to intend nothing inore than to secure to those persons the exclusive use of the surplus water, in preference to the proprietors of detached and distant situations, who might, otherwise, have contracted with the Potomac Company to take the water away from the proprietors of the immediately contiguous and adjacent lands. No consiruction could be more unreasonable or absurd, than to suppose the law intended to prohibit any arrangement with one proprietor, without the concurrence of other independent proprietors, having no sort of interest, either joint or several, in the particular parcel of land to and through which alone the water was to be conveyed, of proprietors whose number was indefinite, whose situations may be the most disconnected and remote from each other, and possessing in their relative positions to each other, and to the canal, the greatest diversity of distinci and independent interests. In relation to those persons who own the lands through which the canal has been conducted, that clause of the 13th section which authorizes and directs the President and Directors to enter into reasonable agreements “ with the proprietors of such situation,” must necessarily be constructed reddendo singula singulis; that is, severally and respectively, as concerns each proprietor. Upon that principle, cach and every proprietor of the particular situation to be improved would be competent to contract for himself; and so the company might go on, fro:n time to time, to contract, separately and successively, with the various proprietors who might chance to own the lands along the whole line of the canal, extending, possibly, from the foot of the Little Falls to the source of the Potomac.
Question 9. Answer. The precise limits specified in the condemnation define what portions of the lands of individuals shall be appropriated or subjected, directly or indirectly, to the purposes of the canal. . To discharge waste water from the canal, upon the lands lying without those limits, (except along the ancient channels of such streams as before flowed through the land) is clearly a wrong, for which the proprietor may recover damages according to the degree of injury sustained; and the continuance or repetition of which he may prevent by injunction from chancery. The present proprietors cannot recover damages for injuries done to the land before it came into their hands.
Question 10. Answer. The proprietor might wave the tort, and accept the water so thrown upon his land; and after the water had flowed through certain channels so long as to raise a reasonable presumption that they were intended to be the permanent issues and channels for the waste water, the proprietor would be justified in proceeding, upon the strength of that presumption, to construct his water works, and would be protected in the use of such water. But his right would be secondary to that of the company, who would have a paramount title to the use of the water, whenever it became necessary to the primary objects of the canal, and circumstances should have rendered it incompatible with those objects to permit it any longer to flow in its accustomed channels. An arbitrary and unnecessary obstruction of those channels, and a wanton diversion of the water to other sluices, through which to discharge it, merely as waste water, would be clearly inadmissible.
Question 11. Answer. If the entire abstraction of such streams from the point where they fall into the limits purchased or condemned for the site of the canal, be necessary to the proper and scientific construction of the canal, then it might be considered as one of the items of incidental damage, for which the jury of inquest would be competent to compensate him; and, in that case, he would not be entitled to claim of the company so much water, in specie. If, however, the entire abstraction of the water was not essential (and I cannot conceive how it should be so in this instance) to the construction of the canal or its incidental works, according to approved rules of art, then it is clear the company have no right to debar the proprietor from the use of the water, but are bound to return it into its accustomed channels. Understanding, in this case, that an equal (or a greater) quantity of waste water is now discharged from the canal, as that which formerly flowed in the ancient channels of the intercepted streams, and that it would be equally practicable to discharge it by such ancient channels as through the sluices made on purpose by the company, I consider that circumstance as affording a practical demonstration of every fact and of every principle necessary to establish, beyond controversy, the right of the proprietor to that specific quantity of water which formerly flowed through his land by those channels, and his right of election either to take that water from the new channels through which it now flows, or to compel the company to return it into its ancient beds.
W. JONES. WASHINGTON, November 28, 1816.
Extracts from the Charter to the Potomac Company. Sec. ll. And, whereas it is necessary for the making the said canal, locks, and other works, that a provision shall be made for condemning a quantity of land for the purpose, Be it enacted, That it shall and may be law ful for the said President and Directors, or a majority of them, to agree with the owners of any land through which the said canal is intended to pass, for the purchase thereof; and in case of disagreement, or in case the owner there shall be femme covert, under age, non compos, or out of the State, on application to any two justices of the county in which such land shall lie, the said justices shall issue their warrant, under their hands, to the sheriff of their county, to summon a jury of twenty-four inhabitants of his county, of property and reputation, not related to the parties, nor in any manner interested, to meet on the land to be valued, at a day to be expressed in the warrant, not less than ten nor more than twenty days thereafter; and the sheriff, upon receiving the said warrant, shall forthwith summon the said jury, and when met, shall administer an oath or affirmation, to every juryman that shall appear, that he will faithfully, justly, and impartially, value the land, (not ex. ceeding, in any case, the width of two hundred feet) and all damages the owner thereof shall sustain by the cutting the canal through such land, according to the best of his skill and judgment; and that, in such valuation, he will not spare any person for favor or affection, nor any person grieve, for hatred, malice, or ill will; and the inquisition thereupon taken shall be signed by the sheriff and some twelve or more of the jury, and returned by the sheriff to the clerk of his county, to be by him rceorded; and upon every such valuation, the jury is hereby directed to describe and ascertain the bounds of the land by them valued, and their valuation shall be conclusive on all persons, and shall be paid by the said President and Directors to the owner of the land, or his legal representative; and on payment thereof, the said company shall be seized in fee of such land, as if conveyed by the owner to them and their successors by legal conveyance: Provideu, nevertheless, that if any further damage shall arise to any proprietor of land in consequence of opening such canal, or in erecting such works, than had been before considered and valued, it shall and may be lawful for such proprietor, as often as any such new damage shall happen, by application to, and a warrant from, any two justices of the county where the lands lie, to have such further damage valued by a jury in like manner, and to receive and recover the same of the said President and Directors; but nothing herein shall be taken or construed to entitle the proprietors of any such land to recover compensation for any damages which may happen to any mills, forges, or other works or improvements, which shall be begun or erected by such proprietor, after such first valuation, unless the same damage is wilfully or maliciously done by the said President and Directors, or some person by their authority.
Sec. 12. And be it enacted, That the said President and Directors, or a majority of them, are hereby authorized to agree with the proprietor for the purchase of a quantity of land, not exceeding one acre, at or near such of the said places of receipt of tolls aforesaid, for the purpose of erecting necessary buildings: and in case of disagreement, or any of the disabilities aforesaid, or the proprietor being out of the State, then such land may be valued, condemned, and paid for, as aforesaid, for the purpose aforesaid; and the said coupany shall, upon payment of the valuation of the said land,' be seized theref, in fee simple, as aforesaid.
Sec. 13. And, whereas some of the places through which it may be necessary to conduct the said canals may be convenient for erecting mills, forges, or other water works, and the persons possessors of such situation may design to improve the same, and it is the intention of this act not to interfere with private property, but for the purpose of improving and perfecting the said navigation, Be it enacted, That the water, or any part thereof, conveyed through any canal or cut, made by the said company, shall not be used for any purpose but navigation, unless the consent of the proprietors of the land through which the same shall be led be first had; and the said President and Directors, or a majority of them, are hereby empowered and directed, if it can be conveniently done, to answer both the purposes of navigation and water-works aforesaid, to enter into reasonable agree ments with the proprietors of such situation concerning the just proportion of the expenses of making large canals or cuts, capable of carrying such quantities of water as may be sufficient for the purposes of navigation, and also for any such water-works, as aforesaid.
By Sec. 17, the dimensions of the canal are prescribed, viz: “a cut or canal, twenty-five feet wide, and four feet deep,” &c. Note.-Those dimensions have been modified by succeeding acts.
Opinion of Wm. Pinkney, Esq. 29th October, 1819. I have read and considered the printed opinion of Walter Jones, Esq. dated Washington, 28th November, 1816, in answer to certain questions proposed to him by Mr. Smith, as a proprietor of land through which the Potomac Company's canal passes, within the District of Columbia.
I have also read and considered a copy of an opinion given by Mr. Marshall in January, 1792, referred to in Mr. Jones's opinion, together with a copy of the condemnation also there referred to, and have carefully examined the charter of the Potomac Company, a “Statement of Facts,” printed in 1816 at Georgetown, and referred to in a note prefixed to Mr. Jones's printed opinion, and a “plat of the land at the Little Falls of Potomac,” furnished by Mr. Smith:
And I am of opinion
18t. That all the principles and conclusions contained in Mr. Jones's opinion, are sound and correct.
2d That Congress will not, and with propriety cannot, grant an extension of the canal beyond the point fixed upon by the charter of Maryland, without the inducement of some adequate public purpose, and without securing to Mr. Smith a just compensation for his rights and privileges under the existing charter.
No. 370. Reported by the Committee on Roads and Canals. An act to amend the churter of the Chesu peake and Ohio Canal Com
pany, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of an act, which passed at the November session of the General Assembly of the State of Maryland, and is entitled “ An act in favor of the President and Directors of the Potomac Company and the Commissioners of the Federal Buildings, be taken and adjudged to be extended to the President amd Directors of the Chesapeake and Ohio Canal Company, and to the agents and contractors engaged on any part of the works of the said company within the District of Columbia.
SEC. 2. And be it further enacted, That so much of the act, entitled “ An act authorizing a subscription to the stock of the Chesapeake and Ohio Canal Company," as provides that not more than one-fifth part of the sum so subscribed shall be demanded in any one year after the organization of the company, shall be, and the same is hereby, repealed, so as to leave the subscription by the United States on the same footing, in this respect, upon which that of all other stockholders of the said company is now placed by the charter thereof.
Sec. 3. And be it further enacted, that the Chesapeake and Ohio Canal Company shall have power to obtain, in the manner provided by the thirteenth section of the act of the General Assembly of Virginia, passed January twenty-ninth, one thousand eight hundred and twenty-four, entitled "An act incorporating the Chesapeake and Ohio Canal Company,” to which, so far as respects the District of Columbia, the assent of Congresi