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Cooper v. Williams.

The state owns a lot of ground, containing ten acres, acquired for the purpose of erecting a state-house, and other public buildings. But there is more ground than is necessary for the erection of all the public buildings. Has the state power to let or sell the surplus quantity?

Nobody doubts it. Suppose a room in one of the public offices might be disposed of, for private use, without detriment to the public service. Would a law authorizing an agent to let or sell it be unconstitutional? No one can be found bold enough to answer affirmatively. It is unnecessary further to multiply examples to illustrate the nature of the power for which we contend.

The result of the inquiry demonstrates, we think, that the complainants have failed to show such a title to the subject matter in controversy, as authorizes the court to grant the relief prayed for.

3. But if the complainants have entitled themselves to relief, to what extent ought the injunction prayed for to be decreed ?

A review of the testimony applicable to this point may be proper And respecting the quantity of water required for the safe and 277] easy navigation of the canal, the proof discloses *the following, among other facts. That the quantity of water flowing in Mad river has never been ascertained, otherwise than by the measurement of Judge Bates, who estimated the minimum discharge at seventeen thousand cubic feet per minute. This estimate, in the opinion of Mr. Farrer, one of our engineers, is too high. He says that, when first filling the canal, ten thousand cubic feet per minute were thrown into it—that probably one-half of this quan. tity will be sufficient in all future time. At present there are six thousand cubic feet per minute conducted through the feeder into the canal, but the quantity is now greater than is necessary. The exact quantity of water required for, or used in the canal, has never been, and, he says, could never have been ascertained, on account of the influx of water from the saw-mill race. The whole quantity of water which it is contemplated to introduce into the canal from Mad river, after the bottom and banks shall have become more firm and solid, is three thousand cubic feet

per

minute, The average waste of water, by evaporation and leakage, is estimated at one hundred feet per minute, to every mile of canal. The water power belonging to the estate of Coc per would not be diminished, except by evaporation and leakage, in consequence of

Cooper o. Williams.

taking two thousand cubic feet of water through Seely's basin and canal ; and the increased expenditure arising from these causes would, in the opinion of the engineers, be compensated by contributions of equal amount from the springs adjacent to that basin and canal, so that the loss of the estate would be nothing. It has never been proposed to take more water from Mad river than the quantity necessary for the supply of the canal. No additional quantity was intended to be taken on account of the two thousand cubic feet proposed to be sold.

Should the state use all the water delivered at the Tumbles, the estate of Cooper will have been increased in value.

Although it appears from this statement of the testimony, that the quantity of water required for the navigation of the canals has never been accurately ascertained, yet that more has been received into the feeder than was necessary for that purpose.

The excess, whatever it may be when correctly ascertained, is not, nor will it be claimed by the state.

*The answer of the defendant, on this point, is fully sug- [278 tained by the evidence. He denies that he had ever caused or or. dered more water to be thrown into the canal, at Dayton, than was wanted for easy navigation; and that, if a greater quantity had been taken than was necessary for that purpose,

it

was with out his orders, and he had not been notified of the fact otherwise than by the bill.

He further denies the imputed intention to sell or lease water to such an amount as would increase the quantity required for navigation, and

says that tbe sale of two thousand cubic feet per minute would not have that effect.

And so say some of the most intelligent witnesses in the case.

The successful operation of the great improvements undertaken by the state, required that its agents should be clothed with ex. tensive discretion and powers; and sound policy demands that the right of individuals to interfere, except in cases where the abuse of power is palpable, ought to be cautiously admitted. It is not every instance in which the keen eye of avarice may detect the loss of an opportunity for profitable investment, that will sanction such an interference. Can the complainants interpose and arrest the career of the state before sufficient time has been at. tained to ascertain, by the test of experiment, the quantity of wa. ter necessary for the navigation of the canal. Almost before com.

Cooper o. Williams.

mercial operations bad been commenced-before plans, requiring time to ripen them into maturity, had been executed; and before results, existing only in prediction, and seen only in prospective, had had time to be realized, the complainants arrest the state, and demand judgment? Whence the necessity of this hasty interference ?

But supposing the redress which the complainants seek be within the competency of the court to grant, and that they have not mistaken the forum to which they ought to have preferred their complaint--let us inquire whether the court can decree a perpetual injunction to restrain the defendant from changing the location of the present feeder, for the purpose of creating a new water power. This the court will not do; because the defendant never attempted, nor did he ever entertain the intention to make 279] the change, here deprecated. *And further, the court has no cognizance of the subject—no power to determine the question whether it would be expedient or inexpedient for the state to change the location of a canal or feeder. This power belongs exclusively to another-namely, the legislative department of the government.

And as to the diversion of the water from the feeder, and the sale of it by the state, they are so many acts competent for the Etate to perform in right of its absolute ownership.

As to the prayer that the state may be enjoined from turning into the present feeder more water than would be necessary to supply the canal for navigation, the state is ready to do, voluntarily, all that it is sought to have done compulsively.

Besides, the court can not determine, from anything before

m, what quantity of water is admitted into the feeder beyond what is necessary for the purpose stated. The whole quantity now taken into the foeder, and that required for navigation, being accurately ascertained by measurement, then the excess of the former over the latter would be the part to be enjoined.

But ought the court, baving a due regard to the character and interest of the state, to go further than to enjoin, in general terms, the agents of the state from withdrawing more water from Mad river than may be necessary to supply the canal with a quantity amply sufficient for all the purposes of navigation. To do this, would leave the government in possession of a discretionary power, essential to the preservation of the canals, and to the ful.

Cooper v. Williams,

fillment of the high obligations it is under to the people of the state. To do more, would be to presume that the government of the state was capable of committing deliberate acts of injustice and oppression toward its own citizens.

If the court makes such a decision as admits the existence of a discretion on the part of the agents of the state in determining the quantity of water which the exigencies of the canal, at the present, or in future time, may demand, then the court will have decided nothing which is now controverted.

It may be permitted to be said, in explanation of some *things difficult to be understood without some knowledge [280 of paternity of this cause, that it may be traced up to the large capitalists of Dayton, with more propriety than to the complainants. Indeed, all its features and lineaments guide us to the true affiliation of the offspring.

It has not escaped the sleepless vigilance of the interested, that should the water power in question be sold, as contemplated, a rival town would spring into existence, and draw to itself a share of the business now transacted at the warehouses on the basin and canal. Then the point at which it is proposed to sell the water, would rapidly grow into importance, and probably check, temporarily, the growth of Dayton, requires not much forecast to perceive. Nor is it to be expected that the spirit of monopoly, after it has once got possession of the mind, will yield up its advantages without a struggle. These advantages, by long enjoyment, we are prone to regard, in the end, as our “rights and interests," and to complain of their loss as nothing less than the infliction of wanton injury.

Then the machinery of the complainants may be rendered less productive by the creation of rival establishments in their imme. diate neighborhood, but this is a damage for which the law has provided no remedy.

It is said that it is the right of the complainants to secare to themselves, if they can, the entire appreciation in value of all that is their own. And it is asked, if it does not interfere with the individual right of the complainants, to take this control of the water power from them, and dispose of it to others. And, in turn, we may ask, if it is not equally the right of the State to secure to itself the entire appreciation in value of all that is its own; and whether it is not an interference with this right for the complain

Cooper v. Williams.

ants to take the control of this water power, and dispose of it to others ? The right to improve wbat is one's own, and to increase its value by all lawful means, is certainly not denied.

But this right is limited by a due respect for the same right in others. The appropriation of so large a portion of Mad river to the public use has probably had the effect to injure the complainants for & time. But it is equally true that the injury has been counter281] vailed by equivalent benefits, arising *from the appreciation of the residue of their real estate. Had no benefit, however, been realized by the complainants on account of the large disbursements of money in the construction of the canal, and the works connected therewith; still, as they were entitled to compensation, it must be presumed they have received it, to the full extent of the injury complained of. In either case the state acquired all the rights that belonged to the complainants; and, among these, the right to control the water power in dispute, and to dispose of it to others. The fatal error that taints all the reasoning of the counsel on the other side, in regard to the relative rights of the state and complainants, consists in the assumption that they have never parted with the ownership of the water, or that they and the state hold it by the community of interest; that both parties have a right to the use of the water in some way—the state for navigation, and the complainants for hydraulic purposes.

If the fallacy of this view has not already been suficiently exposed, it is now too late to undertake it.

In conclusion, I beg leave to refer to the attempt to inculpate the defendant by a broad insinuation that he has prostituted his official functions to aid the interested views of unscrupulous speculation. To give color to the imputation, ingenious analogies are resorted to, and extraordinary coincidences are supposed-all tending to the proof of culpability. There is, however, not a fact established in the whole case which is inconsistent with that high character for integrity, firmness, and correct moral sensibility which the defendant bas eminently sustained during the many years of his public employment. Since the publication of the ar. gument of complainants' counsel, and with a view to repel the accusation leveled at the defendant, he has taken the deposition of Mr. Moore, and placed it among the papers in the cause. This deposition, to which I would respectfully invite the attention of the court, explains the nature of the connection which the defend.

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