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In answering che 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 between 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between the respective States; and, therefore, cannot be repealed or altered by either, without the concurrence of the other; and so it has always been considered and treated by the respective States; the Legislature of each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 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 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 those objects;
and by actually conducting the canal past the land in question. 2dly, Because the land condemned is situate a considerable distance below thc 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, 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 lith 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 “ 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 condemnation 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 limitaion becomes utterly useless and nugatory.
Question 5. Answer. The 15th section not only authorizes, but directs, hat tha 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 ater 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 e 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 Prelent 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 priviges, 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 ihe 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 renizes 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 coning clause of the 13th section, as the sole consideration for the use of surplus 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, suscepof 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, s.s 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
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 pre