Sinnickson v. Johnsons. The plaintiff, then, admits that the act of the legislature protects the defendants from indictment or prosecution at the instance of the public-but can afford them none other or further protection. In the case of Bassett, Sinnickson and Sinnickson v. the same defendants, in the court of Chancery, on application for an injunction, Chancellor Vroom says, "The act of 1818 authorizing the stopping of the Salem Creek, which is a public highway, protects the defendants against all prosecutions and indictments at the suit of the public, but does not protect them against the claims of individuals, for injury done to private property. Private rights are not considered as taken away by the act. If private property is injured, the defendants are liable to respond in damages, if about to be destroyed, the owners are entitled to the preventive remedy of this Court." Opinion of Ex. Ch. Vroom, (MS.) In Angell on tide waters, page 27, it is remarked "It is an incontrovertible principle, that private rights shall not be infringed, without a satisfaction being made to the parties injured." It is a well established principle of natural equity, that private rights are not to be impaired by the authority of a State, unless a recompense is provided. Angell on water courses, 53-54. The public is considered as an individual treating with an individual for exchange: all that the legislature does, is to oblige the owner to alienate his possessions for a reasonable price, and even this is an execution of power which the legislature indulges with caution, and which nothing but the legislature can perform. 1 Black. Com. 139. Private interests must sometimes yield to public good, but only where a fair and just equivalent is awarded to the owner of property taken. The People v. Platt, 17 Johns. 195. These cases have been cited to show that even for useful public purposes, no man's property could be taken without compensation-how much stronger is the case before the Court, where the defendants, under the idle pretence of shortening the navigation, have by the stopping of Salem Creek, created a water power which is to make the private fortunes of the defendants :—the property of the plaintiff is destroyed that the private interests of the defendants may be enhanced; and this without the recompense of a farthing. Sinnickson v. Johnsons. The same principle may be found in 2 Johns. Ch. cases, 162; and in 2 Kent's Comm. 339. But the legislature never intended, by that act, to interfere with or divest any private rights: they granted the power, to be used at the peril of those who exercised it, and with the tacit understanding "sic utere tuo ut non alienum lædas." In the Chancery case before cited, Chancellor Vroom says, "But the true answer is, that the legislature never intended to give a right which in its exercise, should do irreparable injury to private property." But if the legislature did so intend, the following cases will show they had no power to enforce their intent. In Stevens v. The Middlesex canal, 12 Mass. Rep. 466, it was held, "That if no means of indemnification are afforded by the legislature, for the injurious but necessary effect of making a canal, those who suffer from it, may maintain an action at common law, for the recovery of damages." In Angell on Water Courses, 65, "A license from a town, to erect a mill dam which overflows the adjacent land, is no justification in an action for a private nuisance." In same book, 60, is some ancient lore in point; "When Ariarthes King of Cappadocia dammed up the passage of the river Melanes, whereby the lands of the Gallatians and Phrygians were damnified, he was adjudged by the Romans, (to whom the case was referred) to pay three hundred talents: et seq. I refer again to the able and conclusive opinion of Chancellor Vroom, in the case in Chancery, and on this point he says, "If in the erection of this dam, or stopping of the water, injury is done to private property, the defendants are answerable in damages to the party injured. It cannot be supposed that the legislature in authorizing the construction mainly, if not entirely, for private accommodation and benefit, intended to exempt the grantee or his assigns from all legal liabilities. Such a proposition could meet with no favor at the hands of any Court, and least of all, from a Court of conscience!" Nor is this all-so "incontrovertible" was that principle considered, that we are told by the Chancellor, "that the defendants counsel (Mr. Jeffers) distinctly and properly admitted, that the right of any person who might be injured, to such damages by Sinnickson v. Johnsons. way of compensation in a Court of law, was not, and could not, be taken away by the act under which the defendants' claim their rights." Opinion of Ex. Ch. Vroom, MS. page 8. I cannot in "defining the position of defendants counsel, do otherwise than suppose he was then in a Court of conscience." In Crittenden v. Wilson, 5 Cowen's Rep. 165. This was an action for a private injury, occasioned by the building of a dam over the Ostelic river, under an act of the legislature of New York; the Court held the defendant liable for all the injury caused by it, to others: In 2 Johns. Chanc. cases, 162, Gardner v. Trustees of Newburgh. "The legislature had authorized the Trustees, to supply the town with water by means of conduits, but had made no provision in the act, for indemnifying the owners of land, for injuries sustained, and the Court of Chancery granted an injunction, until compensation was provided, and held that the party injured, had his remedy at law for his damages." In Steele v. Western Inland Lock Navigation Company, 2 Johns. Rep. 283. This is a case where the plaintiff sued for two causes. 1. For the overflowing her land; in consequence of leaks in the banks of the canal. 2. For damages done by cutting the canal through her land. The defendants set up an act of the legislature of New-York, as a justification. By the act, provision was made for the payment of damages; the Court held that plaintiff could not recover for the injury by cutting the canal, but for the overflow of the land, she might-and the reason assigned is, that for the former, provision is made in the act, but not for the latter injury. In Sutton v. Clark, 6 Taunt. Rep. 44, the Court held that where the act is done for private emolument, a party injured may recover damages, at Common Law. In the case of Bonaparte v. The Camden and Amboy Rail Road Company, 1 Bald. Rep. 226, are the following principles in point : "It is not intended to lay down the broad proposition that it is indispensable that the law should contain a provision for compensation, or prescribe the mode of making it. Though the law may be silent on this subject, yet if compensation is actually made in any way, or if the legislature should by a subsequent law, direct it to be done, the law would be valid; but before this แ Sinnickson v. Johnsons. is done, the execution of any authority which the law might profess to give, to take possession of private property, would be enjoined for the right of the owner to receive, and the duty of the legislature to provide compensation, is absolute; and the rights of property cannot be taken without an equivalent." In Gridley v. Flood, 6 Hals. Rep. 292, it is held," that the proprietor of the land, is not precluded from his remedy, by action for damages, if no appraisement is made." In the case above referred to, of Bonaparte v. the Camden and Amboy Rail Road Company, page 227, Justice Baldwin, in referring to a case in 2 Peters, 526, involving the same point, says, on this authority, we should have no hesitation in enjoining the execution of the law, if it provided no compensation, without declaring it void, &c." And again, "we should feel it our duty to go further than to enjoin till the owner should have an opportunity of seeking and obtaining compensation; and we would continue the injunction, till the company had made the compensation, without imposing any burthen of seeking or pursuing any remedy, or leaving him exposed to any risk or expense in obtaining it. et. seq. In 12 Mass. Rep. 468, "If a legislature should authorize any improvement, the execution of which should destroy private property, without at the same time affording means of relief and indemnification, the owner of the property destroyed, would undoubtedly have his action at Common Law, for damages.” Upon the authority of these cases, the plaintiff's counsel submits the case to the judgment of Court, without reply to defendants' argument. W. N. Jeffers for the Defendants. The defendants rely upon the act of the legislature as a justification. This is a law without any provision or indemnification upon the face of it, for injuries which may result to individuals, by carrying it into execution. Had the legislature a right to pass this law? Is the law good or void? If good, it is a justification, if void, it is no protection, 2 Pet. 245. 1, As to the right of the legislature to pass this act. The State of New-Jersey is a free, sovereign and independent State. She has all the attributes of sovereign power. The article of confederation was a league of sovereign powers for purposes of defence and war. The Constitution of the Union takes nothing from this sovereignty. The limitation, or prohibition to exercise certain powers of sovereignty, by common consent, does not affect the inherent power. The legislature of New-Jersey under these limitations, is as the power of the British Parliament. The power of parliament is without limit, 5 Com. Dig. 220, H. The power of our legislature is equal to this. We have no Bill of Rights. Our constitution imposes no restraint. This transcendent power of legislation devolved upon all the States, at the close of the revolution, subject only to the limitation which the people imposed in their constitution and bill of Right, 1 Bald. 220, 226; 4 Wheaton, 518, 547, 552; 8 Wheaton, 584; 2 Pet. 408, 414, 656; 2 Kent. Com. 338; 2 Halst. 292. Application While on the one The legislature having a right to pass this law. for redress must be made to the legislature. hand, the legislature has power to take private property for public use; compensation must be made. It is an inherent act of sovereignty, which gives the right to take, and imposes the obligation to make compensation, which flows from its paternal duty and sense of natural equity. As the legislature, in the exercise of its transcendent power, may take private property for public use, the application for redress must be to the same power, that it may point out the measure of compensation, and mode of trial, 1 Bald. 226; 2 Pet. 245. The taking private property or divesting private rights, is no violation of the constitution, 1 Bald. 220, 221; 2 Pet. 412, 13. The object is to im- This law was passed for public benefit. prove the paramount right of navigation. the sea, it belonged to the sovereign power of the state. 1 Harr. Law. Trac. 6, 17. The government wished to improve it; such is the title of the act. Public necessity demands my property, or my life in case of war: the supreme power has a right to both, and I must yield them up. The supreme power is to judge when public necessity demands a surrender of private property, and the making of the law, is a declaration upon the subject. Vatt. 112; Ruth. 42, 43, 272, 34; Bull. 150; Puff. 829; Gro. 393; 17 John. R. 215. This may be said to be "An act to contract with John Denn, |