United States v. Harris. until many years after the passage of it. If the plan and report of the committee did not in fact contain a laying out of these streets in a legal sense, (for the time of their being actually opened is quite a different consideration,) it is perfectly clear, that the act of 1781 does not apply to them; for it confirms past proceedings only in laying out, and does not purport to authorize future proceedings of a like nature. And here, again, we are in the dark; for the proceedings of the town, as to these streets in 1795 or 1796, and in 1798 and 1799, cannot be found; and we have no means of ascertaining their import or effect. The plan alone remains; and that certainly extends the lines of the streets, as they were subsequently opened. In my view of the case, the adoption of the plan by the Legislature in 1781 must be deemed, in a legal sense, a laying out of streets at that time; and the subsequent proceedings of the town were not a new laying out, but merely an opening of the old streets in conformity to the plan. Upon this point the argument is not, therefore, sus tained. But, for the other reasons already stated, my judgment is, that the laying out of the streets over the premises in 1781 did not transfer the fee from the then owners of the land, but left it in them, subject to the easement. And, according to the agreement of the parties, the United States are to become nonsuit. CIRCUIT COURT OF THE UNITED STATES. Fall Circuit. RHODE ISLAND, NOVEMBER TERM, 1830, at PROVIDENCE. Hon. JOSEPH STORY, Associate Justice of the Supreme Court. BEFORE Hon. JOHN PITMAN, District Judge, W. AND D. D. FARNUM บ. THE BLACKSTONE CANAL CORPORATION. The Blackstone Canal Company were authorized by their act of incorporation to construct a canal, &c.; and the manner pointed out in which they should locate the canal, &c. Held, that in order to entitle the company to raise a dam by which the water of the river should flow back to the injury of the riparian proprietors, the location of such dam and the intention to raise it must be made known and confirmed in the manner pointed out by the act of incorporation. Where two corporations are created by adjacent states with the same name, to construct a canal in each of the states respectively, and afterwards their interests are united by subsequent acts of the states respectively, this does not merge the separate corporate existence of such corporations; but creates a unity of stock and interest only. Every act of incorporation must be construed in such a manner, if possible, as not to exceed the sovereignty of the Legislature granting it. It ought not therefore to be deemed to authorize any act to be done, which would exceed the jurisdictional power of the state, or interfere with the rights of other states, as to construct a canal, or raise a dam, in another state. Quære, if the Legislature of one state can authorize a dam locally in that state to be raised, so as to flow back a public river running into another state, to the injury of mill privileges locally situate in the latter state. THIS HIS was a Bill in Equity brought by the plaintiffs, the proprietors of a cotton mill situated in the town of Mendon in the state of Massachusetts, against the defendants, the pro Farnum v. Blackstone Canal Corporation. prietors of the Blackstone Canal, to compel them to reduce the height of a dam across the Blackstone River, which had been raised by them, whereby the operations of the plaintiffs' mill were impeded; also, for a perpetual injunction against raising it in future, and for damages for the injury already sustained by the plaintiffs. The material facts stated in the bill were as follows: That, in the summer of 1825, the plaintiffs built their dam across the Blackstone River in the town of Mendon and state of Massachusetts, and erected a woollen mill, to be carried by water taken from the pond flowed by said dam; the mill and dam of the plaintiffs being in the state of Massachusetts. In March, 1826, the plaintiffs began to dig a raceway for their cotton mill, south of the woollen mill and lower down the river, and in the course of the year 1826, the cotton mill was completed; the mill, and wheels, and part of the race being in the state of Massachusetts, and the remainder and mouth of the race being in the state of Rhode Island. In August, 1828, the plaintiffs built their grist mill still further down the river, and in the state of Rhode Island. In June, 1826, the plaintiffs and defendants entered into an indenture, by which, among other things, the plaintiffs agreed, that the Blackstone Canal should cross their pond aforesaid, and pass over their land; and to release all damages therefor; and also to pay the defendants $ 500; and to support farm bridges across the canal, where the dam passed over their land; and not to draw down the water in their pond more than four inches below the cap log thereof. The defendants by the same indenture, for the considerations above cited, conveyed to the plaintiffs the right to draw water from the canal at any point of their land, and covenanted for the quiet enjoyment of this right. The Woonsocket dam, across the Blackstone River, is about one mile and three fourths below the plain Farnum v. Blackstone Canal Corporation. tiffs' cotton mill. In August, 1828, the defendants raised this dam two feet for the purpose of deepening the water in the Woonsocket pond, so as to render the same navigable as a part of the canal. The raising of this dam caused backwater on the wheels of the plaintiffs' mills, so as to materially obstruct their speed. The back-water was so great, that the plaintiffs had been obliged to build another mill, called the picker mill, for the purpose of removing into it the picker and some of the heaviest machinery from the cotton mill; the wheel of the cotton mill being unable, when clogged by back-water, to carry the machinery, though, before the dam was raised, it was fully able to carry all the machinery. The plaintiffs' investment in mills, other buildings, and lands, &c., was over $100,000, and the value of the property depended materially upon the reduction of the Woonsocket dam to the height it stood at before it was raised. The bill prayed, that the defendants might be decreed to reduce the dam to its former height, and for a perpetual injunction against raising it in future, and for an account of damages already sustained, to be taken by a master. The plaintiffs upon these facts, rested their case upon two grounds; first, as proprietors of mills lying in the state of Massachusetts, and second, upon the indenture; contending that the defendants, after having conveyed the right to draw the water from the canal, were estopped from so raising the Woonsocket dam, as to render the right to draw the water of no value. The Answer of the defendants admitted, that they had raised the Woonsocket dam two feet, and contended, that they had a right to do so by virtue of their charter, and also by an agreement with the plaintiffs, who had released all damages. That by their incorporation by the Rhode Island Legislature, and by subsequent acts, they were empowered to build a Farnum v. Blackstone Canal Corporation. canal from Worcester to Providence, and to take land, &c., for that purpose, the damages to be appraised and reported to the Court of Common Pleas. That in pursuance of this authority, in 1825, they, by their commissioners, located the route, and marked the level, &c., of the canal, by stakes and marks on the east side of the Blackstone Canal, from above the plaintiffs' land, (which principally lay on the west side,) to the Woonsocket village; and that the route and level so marked out required that the Woonsocket dam should be raised four feet, in order to render the canal navigable. The commissioners made a report of this location on the east side, but, there being no Court in session, it never was returned to the clerk's office of said Court of Common Pleas. In the mean time, after the excavation had begun, plaintiffs entered into a negotiation with defendants, through the commissioners, to change the route of the canal at that point, from the east to the west side, in order to increase defendants' water power. This was agreed to, by means of which the plaintiffs realized great advantages, and were enabled to erect a cotton and grist mill. The answer alleged, that, at that time, it was publicly known the Woonsocket dam must be raised, and that in changing the location of the canal, the same level was preserved on the west, as had been marked out on the east side of the river. The location on the west side was made the 24th of February, 1826, the previous location to raise the Woonsocket damn having been made on the 10th of February, 1826. The defendants further set forth, that the Farnums were desirous of purchasing the Mowry land, below the land they then owned exclusively in Massachusetts, but could not effect the purchase from the Mowrys. That defendants did purchase this land to accommodate the Farnums, and conveyed the title to them for their benefit. It was also alleged, that before defendants began their raceway for their new cotton |