
    Harding vs. A. G. & R. Goodlett.
    The act of Assembly of 1777, ch. 23, sec. 2, providing for the condemnation of land to build grist mills upon, is not unconstitutional.
    The owner of the fee takes the land subject to the right of eminent domain,\n the State fox public purposes, and the legislature of the State can designate the public purposes to which it is to be applied.
    The act of 1777, ch. 23, sec. 2, does not authorize the condemnation of land for the erection of a grist mill, sain mills and paper mills, jointly; it only extends to the condemnation of land for gristmills.
    
    An order of the county court, condemning the land of one man upon the petition of another, to the use of a grist mill, -saw mill and paper mill, is void.
    In a proceeding for the condemnation of land, under the act of 1777, ch. 23, sec. 2, no interest or right to the use of the land can be enquired into, except such as the act itself gives ; and the person wishing to set up a right by agreement or contract, must resort to the ordinary tribunals of the country.
    In this cause the appellees filed their petition in the county court of Davidson, setting out therein that they were the owners and proprietors of a tract of land on Mill creek, upon which there was a suitable site for the erection of a mill; that they were desirous of erecting a grist mill, saw mill, and paper mill, thereon; that Harding, the' appellant, had purchased the land on the opposite side of the creek, from Floyd Hurt, with notice of a permission, given hy said Hurt to petitioners, to erect and hutt the works of their mill dam upon the land on the opposite side, and prayed the court to appoint commissioners to value one acre of land of said Harding’s, and report thereon to court; and that upon the report of the commissioners, said one acre of land should he condemned to the use of petitioners, under the act of 1777, ch. 23, sec. 2.
    
      Harding filed his answer, objecting to the erection of the mill, alleging that the condemnation of the land under said act of assembly, would be a violation of the constitution of the United States and of the State of Tennessee. A condemnation of land for the erection of a grist mill, saw mill and paper mill, was not authorized by the act of assembly, though a condemnation for a grist mill alone might. The erection of the mill was not called for by public necessity; its erection would impair the enjoyment of his lands; it would endanger the health of his family,and of the neighborhood; it would be a nuisance to the surrounding neighbors. If the court should believe a mill ought to be erected, that the court would decree the right to him, as he had the paramount title, &c.
    Upon the trial of the cause, the report of the commissioners was read, which was favorable to the petitioners. The agreement and permission of T’t to the petitioners, in writing, was produced an ;d, and that Harding purchased, with notice of s> i • rmission; that the petitioners had tendered the va; ■■ • • money of the land to Harding, and upon his refuse< -' ceive it, had paid the same into court. Theproof .> ■' i injury that might arise to the neighborhood, by 1o. , etion of the mill-dam, was conflicting, but the v: iving been decided upon another point, it need not: -■ out. The county court awarded a condemnation . v - id, according to the prayer of the petitioners, and c ■ - ippeal to the Circuit Court, the decree of the couih ■ :t was affirmed; from which decision of the court, ■ ‘ mg appealed to this court.
    
      T. H. Fletcher, for the. apj • ,. I.
    When the public exigencies, and the public • ■ - cquireit, the property of a citizen may be appropi < ,o the public use, against: his will, on full compensa' ■ • ' fing paid him in money; but the legislature can-n ! = cst him of his property, against his will, and inv in another person, even though the most ample pecuniary compensation he tendered him. Sec. 5th, amendment of the Constitution of the U. States. 1 Scott, 433. 20 Johnson’s Rep. 103. 17 Johnson’s Rep. 215. 2 Dallas’ Rep. 310, 311, 312. 2 Bay. Rep. 58, 59, 61.
    2. It is admitted that grist mills are of public utility; but for the defendant it is contended, that before the court can deprive him of his land, even for the purpose of erecting mills, that it must be shewn that necessity, public necessity, requires their establishment. To deprive him of his land, it is not sufficient to shew that the erection of another mill in the neighborhood would add to the convenience of a few. It is only in cases of necessity that the citizen’s property becomes subject to the exigencies even of the government that protects him.'— It should never be condemned merely for the purpose of enriching another, which is the object sought in the present case.
    3. Harding resists this violation of his most sacred rights, upon the ground that the necessities of the public do not require the erection of the mill. The evidence shows, that there are now already eighteen mills on the creek and its branches, and that there are three within three miles of the site of Goodlett’s mills, viz. Buchanan’s, about one mile below; Foster’s, about two miles above,; and Wharton’s, in less than three miles above. The testimony of Buchanan and Foster shows, that they can now grind twice as much meal as the public demand of that neighborhood requires.
    4. It is also shown, that no mill can be built at the site proposed, that can promote the public good, as many of the witnesses say, even when completed, “they would not have it as a gift;” “that it would be a losing business;’’ &c. This arises from the locality of its situation, flooded by back-water from the Cumberland, &c.
    5. And whilst it is shown, that its erection is not required, and if required, that it could effect no good, the testimony of many witnesses, even of scientific attainments, and others of practical observation, clearly shows, that the pond which would he produced, would without doubt produce disease in its vicinity. It is admitted, that the record shows conflicting theories and jarring speculations upon this subject, calculated to produce doubt; but the facts sworn to by several of the witnesses, that a mill which had been established on Mrs. Sims’ land, the pond of which covered a part | of the same land that Goodlett’s pond will cover, had to be pulled down and destroyed, on account of the sickness which it produced, speak a language not to be resisted by mere speculation. It is shown in the evidence, that Harding gave upwards of $12,000 for his tract, and that the site upon which he contemplates building his dwelling-house, will be swept by the very winds which will carry off the pestilential vapours which will gather in the pond in times of low water; and Mrs. Sims will be subjected to the visitation of the very diseases which the destruction of her mill was intended to prevent.
    6. The act of 1777, ch. 23, sec. 2, declares that such condemnation shall not take place, “if it take away houses, orchards, gardens, or other immediate conveniences.” Now it is shown, that the erection of this dam will cause the back-water to overflow an excellent spring belonging to Harding. This spring is situated near to a settlement which Harding has on that part of his tract; a settlement which at present consists of two small fields and a cabin. It is also shown, that there is no other spring on Harding’s tract within less than a mile of this one.— The testimony also shows that the spring is used by Sims’ people in the summer season. Harding deems this spring an “immediate convenience,” and as that will be destroyed, which is prohibited by the statute, he says the condemnation cannot be affirmed. The spring is not situated on the acre sought to be condemned, but is some distance up the creek from the site. See act of 1777, ch. 23, sec. 2: 3 Marshall, 329.
    7. Harding protests against the erection of this mill; he helioves it will be ruinous to the health of the immediate neighbors; that it will destroy the value of his land, which has cost him much money; and hopes the court will dismiss the plaintiff's petition. But should the court believe that the public good requires the establishment of this mill, and that its erection, in the good that it will do, will over-balance the frightful waste of human life and destruction of property which its establishment will produce; in short, should the court determine that such a mill must be built; then the said Harding says, that his claim to the privilege of erecting a mill at said site, is paramount to that of the said Goodletts. The bluff, which alone makes the spot at all eligible, is on his acre; the bed of the creek, and consequently the water that flows over it, are his. These facts his grants show; and he owns greatly the largest estate. The act of 1777, ch. 23, authorizes the court to condemn whichever acre it pleases, and can confer the privilege upon either party. Harding protests again, that he desires no such establishment; but should the erection be decreed, and the duty be imposed on him, self-preservation would induce him to resort to every means in bis power to lessen the effects of the destructive malaria which will be there engendered.
    8. Goodlett relies upon a parol permission which he obtained from Hurt, who owned the land before Harding purchased, and contends that Harding is bound by that promise. But see 4 John. 81,83: 1 Haywood, 248.
    9.Harding also contends, that the mode of ascertaining the damage he sustains, as pointed out by the act of 1777, is unconstitutional.
    The condemnation of his land inflicts upon him an injury; for that injury he is entitled to damages; and the only constitutional mode of ascertaining the quan-turn of damages, is hy trial by jury. That right is secured to him by the constitution. 1 Hay. and Cobbs, 407, sec. 6. Every man, for an injury done him in his lands, shall have remedy by due course of law, (1 Hay. and Cobbs, 407, sec. 17,) and no freeman shall be dis-seized of his freehold, except by the judgment of his peers or the law of the land. 1 Hay. and Cobbs, 407, sec. 18. In this case, the right of trial by jury has been denied him, and a summary mode adopted, whereby he is tobe despoiled of his freehold; a mode unknown to the common law, and at war with the whole letter and spirit of our institutions. See also, 2 Dallas, 314 and 315: 2 Bay, 58, Judge Burke’s opinion: Statutes of Kentucky, 1787, article “Mills.”
    10. And even the mode of ascertaining the damages was objectionable; here, the measure of damages is inadequate. By the constitution of Tennessee, (1 Hay. and Cobbs, 407, sec. 21,) no man’s property shall be taken for the public use, except upon just compensation being made; so in the 5th amendment of the constitution of the United States. Goodiett alleges in the testimony, that there is a valuable site for a mill. If so, it must be worth thousands of dollars; and yet only 115 is allowed for his land, although the testimony shows that he owns the bluff) the rock, the bed of the creek, and the water. In ascertaining the damages to be sustained by Harding, or the compensation to which he is entitled, it is not sufficient that he is merely allowed the value of an isolated acre of ground; but in ascertaining the value of that acre, its relative advantages, in this instance its water power, and consequent capabilities, should be taken into consideration.
    O. B. Hayes argued on the same side in support of the positions assumed for the appellant.
    
      
      J. S. Yerger, for petitioners.
    The petitioners insist that the firstlpoint made by the defendants in answering, cannot be sustained. 1st. Because by the articles and sections of the constitution of the United States and of the State of Tennessee, to which he refers, it is declared that “the private property of one individual shall not be taken for public use, unless a just compensation be made,” which clearly implies that it may be done if such compensation be made, and which in this case the proof shows has been done. If the law were as the defendant contends it should be settled by this court, it would entirely destroy public improvement, unless the party owning property would assent, although he was justly compensated for its loss, and the right of eminent domain by that means be destroyed. 2. Because the act was passed prior to the adoption of the State and of the United States constitutions, was general in its operation, and thereby a part of the law of the land at the time they were framed. See 1 Scott, 433, 536 : 2 Bay’s Rep. 38, ct seq.i Cornet vs. Winton’s lessee: Wally’s heirs vs. Kennedy, 
    
    2. These petitioners insist that this case comes clearly within the intention and meaning of the act of 1777, ch. 23, sec. 2. The act itself shows, that it was designed to promote and encourage the erection of mills, and this being the manifest object of the legislature, the courts should be liberal in extending its provisions, so that all cases coming by possibility within its meaning, might be embraced. It has always been an object of great solicitude with courts at common law, to protect and encourage the erection of mills and other manufac-tories of public utility; and this disposition of the courts, f.o foster and encourage domestic manufactories, the legislature did not intend to restrain, but evidently to promote by holding out inducements to individuals to engage in such business. See 3 Bla. Com. 219: Acts of 1777, ⅛. 23, and 1811, ch. 91.
    It is contended by the defendant, that the erection of a mill must be called for by public necessity, and not for individual advantage; this position, the petitioners conceive is not tenable; the act shows that the legislature considered this means of individual enrichment laudable, and of benefit to the community; because it produced a desirable competition in the manufacture of articles of daily and necessary consumption, and therefore authorized the erection of mills in two miles of each other; and though the new mill might take away all the business from the neighboring ones, the court would not interfere to prevent its erection. 3 Bla. Com. 219. 1 Scott, 219.
    3. The defendant contends, that the erection of a mill at the place contemplated would be an injury and nuisance to him in the enjoyment of Ms property. In answer to this objection, the petitioners insist that he must have had the right to that enjoyment long previous to the nuisance complained of, or the court will not interfere either to prevent or remove the cause of the injury. See 3 John. Ch. Rep. 282: 6 John. Ch. Rep. 429: 2 Yes. 414: 16 Ves. 338.
    Yet that objection is more fully answered by the fact of the defendant having become the purchaser of the land, with a knowledge of a license and permission given by his vendor to the petitioners, to erect the mill; and having this knowledge, the law will presume that he knew all the injury and inconvenience that would result to him from such agreement, and that he regulated his purchase accordingly.
    That the owner of the soil may subject it to any inconvenience he pleases, is a point no one will deny. Upon this the law is fully settled, and a person once granting a license or permission to another, (whether written or verbal) to erect machinery or other incumbrances on his premises, cannot afterwards (although the machinery become a nuisance to him) revoke or retract such license orpermission. See 8 East’s Rep. 308: 3 Stark. Ev. 993: 3 Kent’s Com. 362. This being the settled law, and the defendant coming in as purchaser of th.e premises with a full knowledge of all the circumstances, and of the license granted, he is placed in the situation of the original owner, and by purchasing with such a knowledge, thereby assented to the agreement, and is forever precluded from objecting. See 2 Littel’s Ky. Rep. 73: 2 Eng. Com. Law Rep. 145: 8East,308: 3 Stark. Ev. 990,993: Sug-den on Vendors, 526.
    4. The right to enjoy property without any disturbance or injury will be presumed after long enjoyment, but this presumption may be rebutted by contrary proof. Thus in this case the record shows, that such presumption was rebutted and destroyed by proof showing that Harding purchased with a knowledge of the agreement between petitioners and Hurt, and thereby took the land subject to this inconvenience, and divested of the ancient right to the undisturbed enjoyment, It was not even necessary that the license should have been in writing. 1 Phil. Ev. 354. 8 East, 310.
    5. The party having by his own acts removed all cause of complaint on his own account, it is necessary now to examine the force of the next objection in his answer, and see how it bears upon the present case.— The answer states, that the erection of the mill will be a nuisance to the neighborhood. Upon this point the evidence is contradictory, and leaves the question very doubtful. If from the evidence, th.e question whether an injury or nuisance will be done to the neighborhood, be left doubtful, this court ought not to interfere to prevent the erection of a manufactory or establishment authorized by law, and from which the public will derive an advantage, but should insist upon clear proof of the fact; and if that is not made, leave the public to their remedy to have it prostrated, if, after the erection of the mill, it should become a nuisance. 5. Rand. R. 691.
    6. But how should this inconvenience to tthe public be shown ? Surely not by an individual seeking to estop the petitioners in the enjoyment of their rights. It should come before the court on an information in the name of the public itself, through its proper officer, which in this case would be the jury of view, appointed to assess the damages and make report, &c. Blackstone says, that no private individual shall sustain a suit for an injury done to the community at large, but that it must be enquired into on behalf of the community itself. 3 Blackstone’s Com. 219.
    To constitute a nuisance to the public, at common law, something more must be shown than doubtful circumstances or visionary fears of persons interested. It must be a real and substantial injury, and not what parties may fear will result from a continuance of the cause. Some injury must be shown to have been caused, or that will actually ensue; (see 1 Russell,428: Blake’s Ch. P. 398-9: 1 Mad. Chan. 155:) and under the section of the act of 1777, ch. 23, which says, no mill shall be erected that "will be a nuisance to the neighborhood, the same strictness is required, because in the common-law sense the word is used in the act.
    7.' Having endeavored to show, that the decree and decision of the court below should not be reversed, because Harding has divested himself by his own acts, of all right to complain, and that he should not be allowed to make himself the organ by which supposed injuries to the public are to be brought before this court, injuries of which the neighborhood make no complaint — we will examine the last objection in the answer, and see if the defendant has the paramount right he there claims of erecting a mill at the place designed. In what does that right consist? Is it because he has the oldest grant? This is not sufficient; the legislature intended that he who filed his petition first, should he allowed the benefits » , . „„ ,. ,. . . , ot the act oí 1777, ch. 2o; acting upon the principle of law, that where two have equal rights, qui prior est tempore potior jure, “he who is first in time is first in law.” And if his right were the oldest and best, if he had not divested himself of all right to make an application to erect a mill, by his purchase with notice of the incum-brance, &c. can he now, when he finds .another by his diligenqe and activity has acquired rights superior to his, come forward and say, you must not grant his request, because at one time my rights were paramount? 1 should suppose not; vigilantibus non dormientibusfseroit lex, “the law is for him who is vigilant in securing his own rights, and not for him who sleeps upon his.” If ever he had a paramount right, his negligence and the attention of these petitioners to their interests, has removed every vestige of priority, and placed their rights beyond the reach of his"objectiqns.
    If this court believe the court below erred in making" condemnation without Specifying that it was done for a grist mill only, the decree will be reversed and sent back for such a decree to be made as the act of assembly authorizes; or in its power to correct errors, reversé the decree for so much as is unauthorized by the act, and decree for that which is, if the proof will justify the decree.
    
      Thompson argued^at, considerable length in support of the positions assumed for the petitioners.
   Green, J.

delivered the opinion of the court.

The affairs of a state cannot be administered in the most beneficial manner, if it has not the right, upon particular occasions,fof Appropriating to its' own use, portions of the property subject to its dominion.— The necessary existence of this right, creates a fair presumption, that the state, in granting the land to individual citizens, does it with this reserve implied. This right of disposition is the eminent domain. Vattel, lib. 1, ch. 20, sec. 244. But although this right does éxist, and the government may take private property, allowing just compensation, Blackstone says it is an exertion of power which is indulged with great caution. It is only for public uses the state is authorized to exercise it; and because the interests of the community require that for the good of the whole, the private right must be yielded. Bill of Rights, sec. 21. It is a power never exercised for the benefit of an individual. Therefore the courts have uniformly held, that the state has no right to take one man’s property and give it to another. 2 Dallas, 310.

Upon these principles, the act of assembly of 1777, ch. 23, proceeds. The 1st section of that act declares, that “every water grist mill which shall hereafter be built, that shall at any time grind for toll, shall be held and deemed, and is hereby declared to be a public mill.” The 10th section provides, that the miller shall grind according to turn; that he shall grind the grain well, if water will permit; that- he shall take no more than an eighth of the grain for grinding; and prescribes penalties if he violate any óf these provisions. The 11th section prescribes the kind of measures the miller shall keep, and annexes a penalty for keeping false measures. The act of 1819, ch. 23, following up the intention and meaning of the act of 1777, ch. 23, exempts the keepers of grist mills from militia duty, from serving as jurors and working on roads.

I quote these provisions of the law to show the character of the use for which the citizen’s property is taken, when a part of his land is condemned for the purpose of building a grist mill. It is emphaticallya public use for which it is required, and to which it is appropriated. The grist mill is a public mill. The miller is a public servant. He is allowed a compensation for 1 , __ , . ... ■ 1 .. grinding. His duties as a miller, are prescribed, and penalties are imposed for a violation of any of those duties; and he is exempted, in consequence of his character of miller, and for the benefit of the public, from the performance of certain duties to which other citizens are subjected.

It will appear from what has been said, that when an acre of land is taken from any citizen for the purpose of erecting a grist mill, although the title be vested in another citizen, yet that vestiture is for a public use, and is wholly different from the case of taking property from one man and giving it to another for his private benefit .only.

The question now occurs; is this application of the character contemplated by the act of 1777, ch. 93? I think it is not. The petitioners say they are desirous to build a gristmill, saw mill and paper mill. For the erection of these works they ask leave. For these purposes they ask to have Harding’s land vested in them. The saw mill and paper mill have no public character; the erection of these mills would be wholly for the private use of these petitioners. To take Harding’s land for such use, would be unconstitutional. The act of 1777, ch. 23, contemplates no such violation of the rights of one man for the private benefit of another. «Had the application been confined to the saw mill and paper mill, no one could for a moment hesitate in rejecting it. Does the’ jntroduction of the grist mill, thereby asking the land for these complicated purposes, alter the case? In my opinion, the application is entitled to no more favor, than if nothing were said about the grist mill. If an application of this sort were granted, a like application for the erection of iron works, or any other establishment requiring water power, might be made, and would be entitled to equal favor, provided the applicant, as a pretext, were to associate a grist mill with his other works. Thus the grist mill, the only thing mentioned in the act of assembly as having any claim to he of a public character, would be made the subterfuge for vesting in one' citizen the land of another, and of giving to the whole establishment, of which it would be but an inconsiderable appendage, the high appellation of a public mill. This would be mocking the citizen, who would thus be despoiled of his land to enrich another. It would be holding out the idea, that his land was taken for public use, and that the public exigencies required it; when in fact, this was only used as a pretext for obtaining the land for private emolument. I conclude therefore, that this application is not authorized by the act of assembly, and that the county court had no power to grant it.

The license from Hurt, has nothing to do with this proceeding. If the petitioners have any rights in virtue of that agreement, they must seek a remedy, either by bill, or in an action for damages. It cannot be noticed in this way. This is. a special proceeding under the act of assembly, and must be determined upon that act alone.

Petition dismissed.  