
    Jonathan Stevens versus The Proprietors of the Middlesex Canal.
    Where the legislature authorizes the making a canal, and provides a special mode of redress for those who are injured in their property by the natural and necessary effect of making the canal, no action for such injury lies at the common law.
    
      This was an action of the case, in which the plaintiff declared, that, on the 1st day of January, 1799, and ever since, he was seized and possessed of several parcels of meadow land in Chelmsford, bounded, &c. And that the defendants, during all the time aforesaid, were owners of a certain canal, passing by or near the'said several parcels of land, during all which time they suffered the hanks of their said canal to be and remain in such a porous, open, and imperfect state, that the waters issuing from the said canal have overflowed the said land during the time aforesaid, and rendered the same wholly unproductive and of no value to the plaintiff. In another [*467] count, the plaintiff alleges his seizin, &c., as in * the first count, and that the said proprietors, on tbe day aforesaid, built, erected, and made a certain canal, passing by and near to each of the said parcels of land, and so negligently and unskilfully constructed the banks of the said canal, that the waters were thereby obstructed and prevented from draining off from the lands aforesaid, and the said banks were by said proprietors negligently suffered to continue and remain, in such an open, porous, and imperfect condition, that the waters of said canal have leaked through said banks, and overflowed the premises during the whole of the time aforesaid, and rendered the same of no value to the plaintiff.
    The action was tried upon the general issue, before Jackson, J., at he sittings after November term, 1813. On the trial, the plaintiff offered evidence to prove that his lands had been damaged, as set forth in his declaration ; but he did not offer to prove that the defendants had done any thing which was not authorized by the act for their incorporation ; nor that they had been guilty of any negligence, or other default, in the manner of making and maintaining the canal ; it appearing that the damage complained of was the natural consequence of the existence of the canal at that place.
    The judge, being of opinion that the only remedy for such an injury was that prescribed in the third section of the aforesaid statute, ordered a nonsuit to be entered, subject to the opinion of the Court upon this point.
    If the Court should be of the same opinion, the nonsuit was to stand ; unless, on the plaintiff’s undertaking to prove actual negligence or default in the defendants on another trial, the Court should think proper to set aside the nonsuit, for the purpose of admitting such evidence. If the Court should be of opinion that the action might be maintained on such evidence as. was offered at the trial, the nonsuit was to be set aside, and a new trial granted.
    Locke, for the plaintiff.
    Bigelow, for the defendants.
    
      
      
        Stat. 1793, c. 21.
      
    
   * Parker, C. J.,

delivered the opinion of the Court. [ *468] The nonsuit in this case was ordered on the ground, that, as a special process was provided in the act incorporating the propri etors of the canal, whereby those who might receive damage in their lands by means of establishing the canal, should obtain compensation, the action at common law is no longer maintainable. This principle was settled in the case of Stowell vs. Flagg.

When the legislature authorizes an act, the necessary and natural consequence of which is damage to the property of another, he who does the act cannot be complained of as a trespasser or wrongdoer. In the declaration of rights prefixed to our Constitution, it is provided that private property shall not be taken and appropriated to public jses, without compensation to the owner. So, that, if the legislature should, for public advantage and convenience, authorize any improvement, the execution of which would require or produce the destruction or diminution of private property, without affording, at the same time, means of relief and indemnification, the owner of the property destroyed or injured would undoubtedly have his action at common law, against those who should cause the injury, for his damages. For, although it might be lawful to do what the legislature should authorize, yet to enforce the principles of the Constitution, for the security of private property, it might be necessary to consider such a legislative act as inoperative, as far as it trenched upon the rights of individuals.

But that difficulty does not exist here ; the legislature having taken care to provide a cheap, easy, and convenient mode of redress, for all who might suffer by the accomplishment of a great public object The act of the legislature is indeed obscure, confused, and almost un intelligible in its terms ; but its general object may be understood ; and the least doubtful of its provisions is that which establishes the course of proceedings to recover damages for lands flowed, or other injuries proceeding from the canal.

There is, therefore, no necessity of resorting to an action at common law. Indeed, it must be considered as intended * by the legislature to deny that remedy on account of the [*469] inconveniences and vexations it would bring upon the proprietors, who had engaged in an expensive experiment principally with a view to the public benefit.

The plaintiff’s motion to set aside the nonsuit is overruled. 
      
       11 Mass. Rep. 364.
     
      
      
        Calendar vs. Marsh, 1 Pick. 418. — Charles River Bridge vs. Warren Bridge, 7 Pick. 344. — Plate Glass Company vs. Meredith, 4 D. & E. 794. — Harris vs. Baker, 4 M. & S. 27. — Sutton vs. Clarke, 6 Taunt. 43. — Boulton vs. Crowther, 2 B. & C. 703. — Jones vs. Bird, 5 B. & A. 857. — Steele vs. Inland Western Dock Navigation Company, 2 Johns. 283. — Lansing vs. Smith, 8 Cow. 186.
     
      
      
        Perry vs. Wilson, 7 Mass. Rep. 393.
     