DISSENTING OPINION
Pattangall, C. J.I regret being compelled to disagree with the conclusions reached by the majority of the Court and stated so admirably by Mr. Justice Barnes speaking for them, but the questions involved seem too important to permit a mere noting of non-concurrence unaccompanied by a full statement of the reasons therefor.
*29The immediate issue is as to the admissibility of certain evidence affecting the value of complainants’ land located within the flowage area of defendant’s dam. Complainants contend that this value is enhanced by the fact that certain riparian rights attach to the flowed premises, that these are property rights, that they are destroyed by the flowage, and that reasonable compensation should be made therefor. Defendant’s position, made clear in the majority opinion and approved by it, is that, even though complainants are able to substantiate the facts upon which their claim is based, no actionable damage is proven; hence, the evidence offered is immaterial and irrelevant.
Defendant’s dam was erected by authority of what is commonly known as the Mill Act, and damages are claimed as provided therein. The important statutory provisions involved are Sections 1, 2, 4, 5, 9, and 25 of Chap. 106, R. S., 1930.
“Sec. 1. Any man may on his own land, erect and maintain a water-mill and dams to raise water for working it, upon and across any stream, not navigable; or, for the purpose of propelling mills or machinery, may cut a canal and erect walls and embankments upon his own land, not exceeding one mile in length, and thereby divert from its natural channel the water of any stream not navigable, upon the terms and conditions, and subject to the regulations hereinafter expressed.
“Sec. 2. No such dam shall be erected or canal constructed to the injury of any mill or canal lawfully existing on the same stream; nor to the injury of any mill site, on which a mill or mill-dam has been lawfully erected and used, unless the right to maintain a mill thereon has been lost or destroyed.
“Sec. 4. Any person whose lands are damaged- by being flowed by a mill-dam, or by the diversion of the water by such canal, may obtain compensation for the injury, by complaint to the superior court in the county where any part of the lands are; but no compensation shall be awarded for damages sustained more than three years before the institution of the complaint.
“Sec. 5. The complaint shall contain such a description of the land flowed or injured, and such a statement of the dam*30age, that the record of the case shall show the matter heard and determined in the suit.
“Sec. 9. . . . the court shall appoint three or more disinterested commissioners of the same county, who shall go upon and examine the premises, and make a true and faithful ap-praisement, under oath, of the yearly damages, if any, done to the complainant by the flowing of his lands or the diversion of the water described in the complaint, and determine how far the same is necessary, and ascertain and report for what portion of the year such lands ought not to be flowed, or water diverted, or what quantity of water shall be diverted. They shall also ascertain, determine, and report what sum in gross would be a reasonable compensation for all the damages, if any, occasioned by the use of such dam.
“Sec. 25. No action shall be sustained at common law for the recovery of damages occasioned by the overflowing of lands, or for the diversion of the water as before mentioned, except in the cases provided in this chapter, to enforce the payment of damages after they have been ascertained by process of complaint as aforesaid.”
The direct issue is of first impression in this Court, although many of our decisions bear forcibly upon it. It has been passed upon in other jurisdictions and, so far as my research goes, no court with the exception of that of Massachusetts has accepted the view advanced by the defendant. While the findings of that court are entitled to and are certain to receive from this Court high consideration, we have, at times in the past, and doubtless will in the future find ourselves in disagreement with the conclusions reached by it. So far as the instant case is concerned, I shall endeavor to point out a variance in the organic law of this state and Massachusetts which in a measure might warrant a difference of opinion on the issue before us.
There are certain fundamental principles underlying the° complainants’ contention which must be kept in mind in order to reach an intelligent conclusion. They assert that riparian rights are included in the word “land” as used in our statutes ; that such rights are property rights; that they not only add to the value of the *31land but constitute a part of it; and that, being property, the owners thereof can not be deprived of them without compensation, even by legislative act.
So far as the first of these suggestions is concerned they rely upon the definition of “land” in the Rules of Construction, Paragraph X, Sec. 6, Chap. 1, R. S., 1930. “The word ‘land’ or ‘lands’ and the words ‘real estate’ include lands and all tenements and hereditaments connected therewith and all rights thereto and interests therein.” In Brown v. DeNormandie, 123 Me., 535, our Court, at page 546, 124 A., 697, adopted this definition in its discussion of the right to flow certain property under the Mill Act, and it has been many times referred to and applied literally in tax cases, Stevens, Collector v. Dixfield and Mexico Bridge Company, 115 Me., 402, 99 A., 94; Foxcroft v. Straw, 86 Me., 76, 29 A., 950; Paris v. Norway Water Co., 85 Me., 330, 27 A., 143; Kittery v. Portsmouth Bridge, 78 Me., 93, 2 A., 847; Hall v. Benton, 69 Me., 346; in condemnation proceedings under the right of eminent domain, Lime Rock R. R. v. Farnsworth, 86 Me., 127, 29 A., 957; in cases involving easements, Currie v. Railroad, 105 Me., 529, 75 A., 51; and in various other cases.
All of the authorities agree that riparian rights are to be regarded and protected as property.
“The riparian proprietor may insist that the right to the use of water flowing in a natural stream shall be regarded and protected as property. Such a right is not a mere easement or appurtenance but is inseparably annexed to the soil itself.” Hamor v. Bar Harbor Water Co., 78 Me., 134, 3 A., 40, 43.
“The plaintiff, as a lower mill owner, had the right to the natural flow of the river, which right is regarded and protected as property, and, before the defendant had a right to take and detain the waters of the river, it was incumbent upon him to take the water in the same manner as it would be required to take other property.” Hubbard v. Limerick Water and Electric Co., 109 Me., 248, at 250, 83 A., 793, 794.
“All these rights which the riparian owner has in the running stream are as certain, as absolute, and as inviolable as any other species of property and constitute a part of the land as much as the trees that grow thereon or the mill or the house that he builds *32thereon. He can be deprived of them only through the power of eminent domain constitutionally exercised.” Opinion of the Justices, 118 Me., 507, 106 A., 865, 869.
“The right to have a natural watercourse continue its physical existence upon one’s property is as much property as is the right to have the hills or forests remain in place. There is no property right in any particular particle of water or in all of them put together. The advantages resulting from a stream of water uniting in one mass maintain a perpetual course through the land and these particles are therefore regarded as part of the common mass and subject to no man’s ownership.
“The extent of the property right is well expressed in Warder v. Springfield, 9 Ohio, 855, where it is said that no riparian owner has absolute property in the waters of a stream, but each has the use of the flow past his lands for domestic, manufacturing and other lawful purpose. The property therefore consists not in the water itself but in the added value which the stream gives to the land through which it flows. This is made up of the power which may be obtained from the flow of the stream, from the increased fertility of the adjoining fields because of the presence of the water, and of the value of the water for the uses to which it may be put. The right to the continued existence of these conditions is property. McCoy v. Donley, 57 Am. Rep., 680; Union Mill and Min. Co. v. Ferris, Federal Cases No. 14371; Schaefer v. Marthaler, 57 Am. Rep., 73.
“To protect this right, the owner may resort to any or all of the instrumentalities which may be employed for the protection of private property rights. Crawford Co. v. Hathaway, 60 L. R. A., 889; McCord v. High, 24 Iowa, 336. And the owner can not be deprived of it without compensation and due process of law. The legislature may not under the guise of protecting the public interest arbitrarily interfere with private rights therein. The advantage of a flowing stream may be considered in fixing compensation for the abutting property when taken under the power of eminent domain.
“The right to the flow of the stream is a property right, and the owner of it has the right to say whether he wishes to' maintain its value as such, and in case others attempt to deprive him of it, they *33should pay for the injury which would thereby be caused to him. While the water right is incorporeal, it is not personal property but is a parcel of the estate itself.
“The right does not depend upon appropriation but exists as part of the land. It is similar to that of having a highway remain adjacent to property on which it abuts. The first and most important right which the riparian owner has in the stream is to the continued flow of the water in its natural condition. This right is fundamental and one of which the riparian owner can not be deprived ; but it is not absolute. Each riparian owner has a right to make such use of the water as he can without materially diminishing the equal rights of the others. It is immaterial whether the owner is making any use of the water or not. A large part of the value of a stream consists in its motion. The lower owner has no right therefore to-dam the water back on the upper property.” 2 Farnham Water and Water Rights, 1565 to 1575.
In Clark v. Cambridge Irrigation Co., 45 Neb., 798, 64 N. W., 239, it is held that, except as abrogated or modified by statute, the common law doctrine with respect to the rights of private riparian proprietors prevails in this country, and that such right is property which, when vested, can be impaired or destroyed only in the interests of the general public upon full compensation and in accordance with established law.
“This doctrine with respect to the rights of private riparian proprietors, except as modified by statute, prevails in this country. Eidemiller Ice Co. v. Guthrie, 42 Neb., 238, 60 N. W., 717, 28 L. R. A., 581; Black’s Pomeroy, Waters, secs. 127, 130, and authorities cited. At the common law every proprietor, as an incident to his estate, is entitled to the natural flow of the water of running streams, undiminished in quantity and unimpaired in quality, although all have the right to the reasonable use thereof for the ordinary purposes of life (3 Kent, Commentaries, 439; Angell, Water Courses, sec. 95; Gould, Waters, sec. 204; Black’s Pomeroy, Waters, sec. 8), and any unlawful diversion thereof is an actionable wrong.
“The rights of a riparian proprietor, as such, are property, and, when vested, can be destroyed or impaired only in the interest of the general public, upon full compensation, and in accordance *34with established law.” Lux v. Haggin, 69 Cal., 255, 10 Pac., 674; Yates v. City of Milwaukee, 10 Wall., 497, 19 L. Ed., 984; Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S., 672, 4 Sup. Ct., 15, 27 L. Ed., 1070; Delaplaine v. Northwestern R. Co., 42 Wis., 214, 24 Am. Rep., 386; Bell v. Gough, 23 N. J. Law, 624.
“The riparian proprietor, say all the books and the- authorities, has a right to the flow of the water of the natural stream passing through or by his land; such right being inseparably annexed to the soil, and passing with it, not as an easement or appurtenance, but as a part and parcel of the land. This property right can be regarded only as a corporeal hereditament belonging to and incident to the soil, the same as though it were stones thereon, or grass, or trees springing from the earth. Gould on Waters, section 204, and authorities there cited. The riparian right to the use of the water flowing in a natural water course is a property right, which should be regarded as such, and to protect which the owner may resort to any or-all instrumentalities which may be employed for the protection of private property rights generally. . . .” Crawford Co. v. Hathaway (Neb.), 93 N. W., 781, at 784 and 786.
“As respects the rights of the land owner to streams, it is to be observed that, while he has a property in the stream, he has no property in the water itself, aside from that which is necessary for the gratification, of his natural or ordinary wants. . . . The right of enjoying this flow without disturbance, interference or material diminution by any other proprietor, is a natural right, and is an incident of property in the land, like the right the proprietor has to enjoy the soil itself, without molestation from his neighbors. The right of property is in the right to use the flow, and not in the specific water. . . . The right to use the water of such streams for milling purposes, is as necessary as the right of transportation. Indeed, it is this consideration that oftentimes imparts the chief value to the estate of the riparian proprietors, and without which it would have no value whatever in many instances.” Lancey v. Clifford, 54 Me., 490.
There are no differences of opinion among the authorities on the point that in fixing the value of land for taxation, riparian rights are to be considered.
*35“Could it be successfully contended that the land was to be assessed only for its value as land for farming, or for any other use to which it might be put disconnected from the stream? Is land upon which there is a valuable unimproved water privilege, where no power is being developed, to be assessed only for the value of the land without privilege? May it not be the chief value of the land that it had a privilege upon it? . . . We think that in so far as this land was made more valuable by the stream and fall, so far these were property to be considered in the valuation of the land.” Water Power Co. v. Buxton, 98 Me., 295, at 297 and 298, 56 A., 914, 915.
“Land upon which a mill privilege exists is taxable and the value of the land may be greatly enhanced by the fact that its topography is such that a dam may be maintained across a stream upon it and water power thereby created. The capability of the land for such use and the probability or certainty, as the case may be, of its use certainly affects its value.” Fibre Co. v. Bradley, 99 Me., 263, 59 A., 83, 87.
In Shawmut Mfg. Co. v. Benton, 123 Me., 121, 122 A., 49, the rule of the Buxton case and the Bradley case was affirmed, and in Power Company v. Turner, 128 Me., 486, 148 A., 799, it was reaffirmed and elaborated in the following language:
“Land upon which a mill privilege exists is taxable at its worth as land enhanced by the value of its capacity for water power development, or to use the language of Fibre Co. v. Bradley, by the value-of ‘the capability of the land for such use.’ If the privilege is undeveloped or, developed, is not utilized, the capacity of the land for power development, often termed its ‘potential development,’ is nevertheless an element of value to be considered in its tax valuation. As was said in Water Co. v. Buxton, the chief value of a parcel of land may be that it has a privilege upon it, and, in so far as the land is made more valuable by the stream and fall within its limits, so far these elements are to be considered in its valuation.”
“The value of land depends upon its capacity for improvement. The elements of its value may be its fertility, the minerals in its soil, its location, the configuration of its surface, and many other circumstances one or more of which may be incident to a certain tract of land. In estimating its value for the purposes of sale or of *36taxation, all of these incidents should be considered and the element or elements of value which lead to the most profitable form of improvement fixes the proper valuation of the land.” Slatersville Finishing Co. v. Green et al, 40 R. I., 410, 101 A., 226, 228.
In Blackstone Manufacturing Co. v. Blackstone, 200 Mass., 82, 85 N. E., 880, the doctrine set out in Saco Water Power Company v. Buxton, supra, and Penobscot Chemical Fibre Company v. Bradley, supra, was accepted and the Court agreed with Judge Emery’s dissenting opinion in Water Power Co. v. Auburn, 90 Me., 67, 37 A., 331, in which it is said, “So far as the land is more valuable by reason of the stream and fall upon it, so far are these to be considered in the valuation of the land and no farther. This consequent increase of value is a question in commercial economics and requires for its determination the consideration of possible revenues to be drawn from the land and the possible price to be obtained for it.”
“Water power has been held to be ‘a capacity of land'for a certain mode of improvement which'can not be taxed independently of the land.’ Land upon the bank of a river and in its bed where there is a fall and adjacent land adapted for flowage may have a largely increased worth in the market by reason of these characteristics which may be made available for valuable use in. different ways. The valuable uses to which the land of the Essex Company could be put, including that of developing the capacity of the river for power, should be considered in estimating its fair cash value.” Essex Co. v. Lawrence, 214 Mass., 79,100 N. E., 1016, 1018.
The rule that in valuing land taken under condemnation proceedings, riparian rights must be considered as a factor is undisputed.
“One whose land is taken by eminent domain is entitled to be compensated in money for the fair value in the market of that of which he has been deprived. In ascertaining what that value is, all the uses to which the property is reasonably adapted may be con- ' sidered.” Smith v. Commonwealth, 210 Mass., 261, 96 N. E., 666, 667.
“In order to prove damages occasioned to the land of the petitioner which was not taken, but which formed part of the same parcel, it was competent for him to show the uses to which it might *37profitably be applied, before and after the taking. That is one way of showing the diminution in value caused by the taking. It was evidence of the actual capacity of the land for future improvement as a fact affecting its value. When any part of the land is taken, the loss of natural advantages, which give value to the whole parcel, is to be taken into account, although the owner had no exclusive or unconditional right to the same.” Drury v. Midland Railroad, 127 Mass., 571, at 582, 583; Hanford et al v. St. Paul & D. R. Co. (Minn.), 42 N. W., 596.
We are forced, therefore, to these conclusions: that riparian rights are included in the word “land” as used in our statutes; that they are property; that they are part and parcel of the upland with which they are inseparably connected; that the value of the upland is enhanced by their existence and must be so considered in matters of taxation, condemnation or sale. By what line of reasoning can it be said that they are not to be regarded in arriving at damages sustained by reason of flowage caused by the erection of a dam under the Mill Act ?
The Mill Acts originated in Colonial days, the first of which we have record being adopted in Massachusetts in 1714, Chap. 15, 1 Province Laws, 729. They were born of the necessities of a pioneer people to whom water-driven grist mills, saw mills and fulling mills rendered as truly a public service as do the railroad, the telephone and telegraph, the lighting company and the water company of today. Preceding in their enactment written constitutions, either State or Federal, it has been found difficult to reconcile their provisions with certain principles of law which we have learned to regard as the foundation upon which private property rights depend. Their constitutionality has often been attacked on the ground that they authorize the taking of property for other than public use, and in certain jurisdictions this view has prevailed. Ryerson v. Brown, 35 Mich., 333; Sadler v. Langham, 34 Ala., 31; Loughbridge v. Harris, 42 Ga., 500; Hay v. Cohoes Co., 2 N. Y., 159; Tyler v. Beecher, 44 Vt., 648. On the other hand, the courts of Massachusetts, Maine, Connecticut, New Hampshire, Tennessee, Indiana, Kansas and Wisconsin have sustained their validity, and the United States Supreme Court has passed favorably upon them. Head v. Amoskeag Mfg. Co., 113 U. S., 9; Kaukauna Water Co. *38v. Canal Co., 142 U. S., 254; Otis Co. v. Ludlow Mfg. Co., 201 U. S., 140. The Act is in full force today in this state. Brown v. DeNormandie, supra.
In the earlier cases in Massachusetts the Act was sustained under the eminent domain clause of the Bill of Rights and it would seem that the doctrine has been accepted in most of the states where it is now in vogue on the authority of these decisions. Brown v. Gerald, 100 Me., 351, 61 A., 785. Later on, this theory was abandoned by the Massachusetts court and in Lowell v. Boston, 111 Mass., 454, at page 467, the court found constitutional justification for the Act in Article IV, Sec. 1, Chapter 1, of the State Constitution, which provides, “And further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same.”
The Constitution of New .Hampshire, Article 5, provides, “Full power and authority are hereby given to the General Court from time to time to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instructions, so that the same be not repugnant or contrary to this Constitution, that they may judge for the benefit and welfare of the State.” It is on the authority of this clause that the Court in Mfg. Co. v. Fernald et al, 47 N. H., 444, held the Mill Act constitutional.
There is no provision in the Constitution of Maine similar to that in the Constitutions of Massachusetts and New Hampshire, hence this Court continued to find a basis for the Mill Act in the right of eminent domain, although as early as 1855 doubt began to be expressed as to the theory that private property could properly be taken for use by those desiring to erect and maintain dams for private profit. In Jordan v. Woodward, 40 Me., 317, the Court, after quoting Sec. 21 of Article I of our Constitution which reads “Private property shall not be taken for public uses, without just *39compensation, nor unless the public exigencies require,” said, “The Mill Act, as it has existed in this State, pushes the power of eminent domain to the very verge of constitutional inhibition. If it were a new question, it might well be doubted whether it would not be deemed to be in conflict with the provision of the constitution cited above”; but added that “From its great antiquity, and the long acquiescence of our citizens in its provisions, it must be deemed the settled law of the state.”
In 1904, however, our Court again asserted that “The principle on which these laws is founded is the right of eminent domain, the sovereign right of taking private property for public use. Their validity implies the power of the legislature to authorize a private right, which stands in the way of an enterprise to improve the water power, to be taken without the owner’s consent, if suitable provision is made for his just compensation. The construction which the courts have generally given to the words ‘property taken’ and in the constitution is that they include permanent damage to property . . . and that an injury to the property of an individual is equivalent to taking it, if it deprives him of its ordinary use, and entitles him to compensation.” Ingram v. Water Co., 98 Me., 566, at 572, 57 A., 893, 894.
In Brown v. DeNormandie, supra, this Court agreed that it was too late to challenge the constitutionality of the Mill Act, regardless of whether its validity rested upon great antiquity, eminent domain, or the Massachusetts and New Hampshire doctrine of public welfare. It was not noted in this opinion that Maine’s Constitution contained no general welfare clause.
On the whole it appears that in this state the early assumption that the Act conferred the right of eminent domain has never been rejected, even though questioned and apparently inconsistent with the reasoning of Brown v. Gerald, supra; and it may be noticed in passing that Smith v. Power Co., 125 Me., 238, 132 A., 740, somewhat narrows the conclusions and implications of the opinion in the last named case.
“Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other States, maintaining the validity of general mill acts as taking prívate property for public use, in the strict constitutional *40meaning of that phrase, the statute under which the Amoskeag Manufacturing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good, in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which without some such regulation could not be beneficially used. The statute does not authorize new mills to be erected to the detriment of existing mills and mill privileges. And by providing for an assessment of full compensation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall., 16.
“Being a constitutional exercise of legislative power, and providing a suitable remedy, by trial in the regular course of justice, to recover compensation for the injury to the land of the plaintiff in error, it has not deprived him of his property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States.” Head v. Amoskeag Manufacturing Co., 113 U. S., 9, at 26.
“General objections to Mill Acts as taking property for private use or on other grounds have been disposed of by former decisions of this Court. Such acts have been in force in Massachusetts ever since an Act of 1714, Chapter 15,1 Province Laws, 729. The practice sanctioned by them would seem from their recitals to have been still older.” Otis Co. v. Ludlow Manf. Co., supra, at 151.
“A state legislature may authorize the taking of land upon or riparian rights in a navigable stream for the purpose of improving its navigation, and if a surplus of water is created, incident to the improvement, it may be leased to private parties under authority of the State, or retained within control of the State; but so far as land is taken for the purpose of the improvement, either for the dam itself or the embankments, or for the overflow,'or so far as water is diverted from its natural course, or from the uses to which the riparian owner would otherwise he entitled to devote it, such owner is entitled to compensation.” Kaukauna Water Power Co. v. Canal Co., supra.
In Pumpelly v. Green Bay Company, supra, the Court held that flowing land was equivalent to taking and that unless compensated for was a violation of property rights.
*41While it has taxed to some extent the ingenuity of jurists, especially in the more recent cases, to sustain the validity of Mill Acts in the face of constitutional prohibitions against taking private property for any but a public use, no Court aside from that of Massachusetts has asserted the right to do so without full compensation for the property taken.
It has been demonstrated that riparian rights are property rights, that flowing land is equivalent to a taking, and that “soil” or “upland” are not synonyms of “land,” the latter being a far more comprehensive word. In only one jurisdiction has it been held that the proprietor of a mill dam may destroy the riparian rights of an upper or lower neighbor without making recompense therefor, and I venture to say that had that doctrine been regarded as a necessary corollary to the Mill Act, it would have been unquestionably held invalid by every other Court in the land in spite of its great antiquity.
It is of interest to trace the origin of the Massachusetts theory and the reasons given in support of it. It apparently arose in the first instance from the acceptance by the courts of that state of the doctrine of prior appropriation as stated in the earlier English and a few American cases.
This doctrine was first advanced by Blaekstone in his Commentaries and was generally approved by the English courts as late as 1831. “By the law of England, the person who first appropriates any part of the water flowing through his own land to his own use has the right to the use of so much as he appropriates, against any other.” Liggins v. Inge, 7 Bing., 682, 693. “It all depends upon the priority of occupancy.” Bealey v. Shaw, 2 Smith, 321, 330.
But in 1827 in Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14, 312, in an opinion by Judge Story, the doctrine was repudiated and the law declared to be that, “the natural streams, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed by operation of law to the land itself,” and “there may be and must be allowed to all that which is a common, reasonable use. It is not like the case of mere occupancy, where the first occupant takes by force of his prior occupancy.” *42Chancellor Kent in the third volume of his .Commentaries, published in 1828, cites Tyler v. Wilkinson with approval.
In 1833 in Mason v. Hill, 110 Eng. Reprint, 692, the English court, notwithstanding the fiat of Blackstone and the cases based upon it, held to the rule laid down by Judge Story. For a time thereafter the law in England appeared unsettled, but in Wood v. Wand, 154 Eng. Reprint, 1047, the court confirmed Mason v. Hill, supra, and in Aubrey v. Owen, 155 Eng. Reprint, 579, the law regarding riparian rights as stated in Tyler v. Wilkinson, supra, was positively affirmed and accepted unconditionally. That such is the true doctrine of the common law has not been questioned in England since that time, and has been generally accepted in America.
“Prior occupancy, short of the statute term of prescription and without consent or grant, will not confer any exclusive right as between different riparian proprietors to the use of a running stream.” 3 Kent’s Comm. (12th Ed.), Sec. 447.
The Note at 30 L. R. A., 665, states that “there was a strong tendency on the part of the judges in earlier times to recognize a right to obtain title to water by prior appropriation or occupancy and at one time it seemed that the doctrine would be established, but the later cases with possibly one exception have all been the other way, so that now no such right is recognized” and cites a long list of cases in support of the editorial statement, including Heath v. Williams, 25 Me., 209, and Bearse v. Perry, 117 Mass., 211, in which it was held that in the absence of the statute no right will be acquired by the erection of a dam.
A study of the Massachusetts cases indicates that had it not been for a divergence from the generally accepted view of the common law as related to the rights of riparian owners, the courts of that state would not have adopted and maintained a view regarding compensation for their loss contrary to that held in other jurisdictions.
In Fuller v. Chicopee Mfg. Co., 16 Gray, 42 (1860), the Court said, “They (.the Mill Acts) were not intended to confer any new right, or to create an additional claim for damages, which did not exist at common law. They only substituted, in the place of the common law remedies, a more simple, expeditious and compre*43hensive mode of ascertaining and assessing damages to persons whose lands were overflowed or otherwise injured by the erection and maintenance of dams on the same stream, for the purpose of creating a water power and carrying mills. It follows that, as a riparian proprietor could recover at common law no damages occasioned to an unimproved or unappropriated mill site by the erection of a dam and mill on the same stream below, he cannot maintain a complaint under the mill acts to recover similar damages.”
This view of the common law, as has been stated, is contrary to that held in any other jurisdiction since the publication of Tyler v. Wilkinson, supra.
In Pugh v. Wheeler, 19 N. C., 50, a case quoted as authority by all of the text writers and affirmed in principle by a long line of decisions in the state of its origin, it is stated that, “We conceive, therefore, that it is the clear doctrine of the common law that all owners of land through which a stream runs may apply it to the purposes of profit. The only question then is, what are the rights of the owners above and below on a stream as against each other? Defendants say that such one of the owners as may first apply the water to any particular purpose gains thereby immediately the exclusive right to that use of the water. That is true, in this sense, that any other proprietor, above or below, can not do any act whereby that particular enjoyment would be impaired, without answering for the damages occasioned by the loss of the particular enjoyment. Whereas before the particular application of the water to that purpose, the damages would have been confined to the uses then subsisting. The truth is that every owner of land on a stream necessarily at all times is using water running through' it, if in no other manner, in the fertility it imparts to his land and the increase in the value of it. There is, therefore, no prior or posterior in the use,, for the land of each enjoyed it alike from the origin of the stream, and the priority of a particular new application or artificial use of the water does not therefore create the right to that use, but the existence or non-existence of that application at a particular time measures the damages incurred by the wrongful act of another in derogation of the general right to the use of the water as it passes through or from the land of the party complaining.”
*44After quoting Mason v. Hill, supra, as authority for the above, it is added that, “No person can, for the sake of givinghimself á use of the water, justify throwing it back upon the land of another so as to deprive him of any use of his land. . . . The policy of the Act makes it applicable to every case of an injury by the erection of a mill. . . . Consequently, a verdict which finds the actual damages is consistent with the objects of the statute. A person owning land on a stream and thereby entitled to certain beneficial uses of the water, if deprived by means of the acts of another of some of those uses which but for those acts he would enjoy, has sustained injury and is entitled to recover damages.”
The courts of New Hampshire have taken what we conceive to be a sound view of the question at issue in this case. “An undeveloped water power is a property right inherent in the ownership of the adjacent riparian land, for the value of which, if any, the owner is entitled to compensation when it is taken under the Flowage Act. Swain v. Pemigewasset Power Co., 76 N. H., 498, 502, 85 A., 288. The plaintiff’s damage for its taking is measured by the difference between the value of her land after the defendant had flowed it and what it would have been worth on the date of its taking (Hadlock v. Jaffrey, 75 N. H., 472, 473, 76 A., 123) if the defendant’s dam had not been.built (Wright v. Pemigewasset Co., 75 N. H., 3, 6, 70 A., 290; Philbrook v. Berlin-Shelburne Co., 75 N. H., 599, 74 A., 873); that is, the difference between the value of the land free from, and subject to, the rights taken (Lancaster v. Jefferson Electric Light Co. v. Jones, 75 N. H., 172, 182, 71 A., 871; Swain v. Pemigewasset Power Co., supra). In the ascertainment of the value of the property invaded, the owner is entitled to have it appraised for the most profitable purpose, or advantageous use, to which it could be put on the day it was taken. Barker v. Publishers’ Paper Co., 78 N. H., 571, 575, 103 A., 757, L. R. A., 1918 E 709; Philbrook v. Berlin-Shelburne Co., supra.” Emmons v. Utilities Power Co. (N. H.), 141 A., 65.
As already noted, the question has not been directly passed upon in Maine, but Hamor v. Bar Harbor Water Company, supra, quotes with approval from Ex parte Jennings, 6 Cow., 526, the following significant paragraph: “There is no reason why the same requirements should not apply equally to the taking of water from *45a stream in which the plaintiffs have valuable riparian rights, as to the taking of land. Both are equally the subjects of property and of compensation.”
And the only logical conclusion to be reached from the following quotation from the opinion of this Court in Brown v. DeNormandie, supra, would be that full compensation must be made for any property or property right destroyed or diminished under the Mill Act.
“Here again we must go to the statute to ascertain what power is given and what exceptions are made. As to the power given, it is to flow the ‘lands’ of any person, and the only exception is an existing mill or ‘any mill site on which a mill or mill dam has been lawfully erected and used, unless the right to maintain a mill thereon has been lost or defeated.’
“The word ‘lands’ is not confined to field or meadow. Under Rules of Construction, R. S., Chap. 1, Sec. 6, Par. X, ‘the word “land” or “lands” and the words “real estate” include lands and all tenements and hereditaments connected therewith, and all rights thereto and interests therein.’ This includes buildings and improvements on the land as well as the land itself. The only exception to this broadly inclusive term is other manufacturing industries on the same stream. This exception did not arise until the revision of 1841, at the same time when the element of necessity dropped out. The evident purpose of both the omission of necessity and the addition protecting other mills on the same stream was the encouragement of manufacturing industries and the injury of none. No other class of private property is exempt from the provisions of the Act. The maxim ‘Expressio unius est exclusio alterius’ may be pertinently invoked.”
The Massachusetts rule, so-called, is based upon a conception of the common law, prevalent up to the publication of Tyler v. Wilkinson, supra, discarded since by the courts both of England and America, and negatived by Chancellor Kent. Our Court questioned the doctrine in its earliest decisions. In Blanchard v. Baker, 8 Me., 253 (1832), commenting on the opinion in Hatch v. Dwight, 17 Mass., 288, the Court said, “The right, however, arising from mere prior occupancy, to this extent, has not been held as exclusive, unless continued for twenty years. Platt v. Johnson, 15 Johns., 213; *46Tyler v. Wilkinson, 4 Mason, 397.” And in Butnam v. Hussey, 12 Me., 407 (1835) : “A riparian proprietor on one side, or above or below, may use the water, or avail himself of its momentum, and may for this purpose create a head of water; provided he does not thereby impair the rights of other proprietors. If he thereby injure or destroy a privilege previously appropriated, he may be held answerable, although the mill or mills, depending on such privilege, may be out of repair, have gone to decay, or been destroyed by flood or fire, unless the same has been abandoned by the owner. Hatch v. Dwight et al, 17 Mass., 289. There an action was sustained for impairing a water power, the actual enjoyment of which by the owner had been sometime suspended. It may admit of more question, whether an action could be maintained by the owner of a privilege, which had never been occupied, for the erection of a dam below, which may have impaired or destroyed its value. There are authorities which sanction the doctrine, that the first occupant thereby acquires exclusive rights, which can not be affected by operations upon the stream above or below. Of this opinion was Parker, C. J., by whom the opinion of the court was delivered in the case before cited. At a subsequent period, Story, J., in the case of Tyler et al v. Wilkinson et al, 4 Mason, 397, after an elaborate view of the authorities in England and in this country, maintains the opinion that such exclusive right is not sustained by occupancy alone, for a period short of twenty years. The weight of authority appears to be with Mr. Justice Story.”
That the Mill Act conferred no rights which did not exist at common law, as stated in Fuller v. Chicopee Mfg. Co., supra, was expressly denied in Jordan v. Woodward (1855), supra, in which Justice Rice, speaking for the Maine Court said, “In direct terms the power is conferred upon the mill owner, by the statute, to erect and maintain a dam to raise water for working his mills, and incidental to this power is the right to overflow the lands of other persons, or to speak more accurately, this power of building dams may be exercised, though incident thereto, the lands of other persons be overflowed and injured. This right is in derogation of the common law, and the natural right of the citizen, and should not therefore be extended by implication.”
It appears then that neither in 1832, 1835 nor 1855 had our *47Court adopted the view that the rule of the court of Massachusetts concerning riparian rights was binding upon the court of Maine.
The assumption that our Court recanted and adopted a different theory in Lincoln v. Chadbourne, 56 Me., 197, is not borne out when the opinion in that case is analyzed. There was no issue presented in that case which called for any expression of the court as to the common law rights of riparian owners. It is, of course, true that proprietors of the earlier dam, erected under the Mill Act, gain prior rights to the flow of the stream; and it is likewise true that if in the exercise of these prior rights the property of another is destroyed or diminished in value, compensation may be recovered for the injury. If the language of this opinion is construed as negativing the latter proposition, it is pure dictum. There was nothing before the court calling for a decision on that point.
As stated above, the Massachusetts decisions rest not only upon a different view of the common law from that assumed by Story and Kent and now agreed to universally outside of that state but also upon the premise that the Mill Acts are merely declaratory of the common law. Maine, in accordance with the view uniformly adopted elsewhere, holds the Mill Act in derogation of the common law and hence to be strictly construed. Denying that the doctrine of prior occupancy confers prior rights at common law, it is and must be considered that such rights are granted only by the statute and that they can not be extended beyond the terms thereof.
By the terms of the Mill Act, the prior occupant is given the right of eminent domain. He may exercise it. He may take for his use the property of his neighboring riparian owner, if it is necessary for his pui-poses, but he can not do so without compensating him therefor. He may flow the land of another but he must recompense the owner of the land to the full value thereof, and if that value is enhanced by the fact that inseparably connected with it and part and parcel of it are riparian rights, those rights must be considered in arriving at its value.
The rule of damage must be the difference between the value of the land before the flowing and afterwards. No other rule can be applied without violating every sound principle of law. Under that rule, riparian rights must be considered. Such rights are “as certain, as absolute, and as inviolable as any other species of property *48and constitute a part of the land as much as the trees that grow thereon or the mill or the house that he builds thereon. He can be deprived of them only through the power of eminent domain constitutionally exercised.” Opinion of the Justices, supra.
The sole duty of commissioners before whom this complaint is to be heard is to determine the diminution in the value of complainants’ land, caused by flowage from defendant’s dam. In arriving at that conclusion, they must accept the definition of the word “land” according to the statutory rule of construction; in other words, they must include all “hereditaments connected therewith and all rights and interests therein.” They must consider its location and keep in mind that its “capacity for power development is an element of value to be considered.” They must remember that “the element or elements of value which lead to the most profitable form of improvement fixes the proper valuation.”
They must have in mind that “land upon the bank of a river and in its bed where there is a fall and adjacent land adapted for flow-age may have a largely increased worth in the market by reason of those characteristics which may be available for valuable use in different ways and that the valuable uses to which the land may be put, including that of developing the capacity of the river for power, should be considered in estimating its fair cash value.”
They must be guided by the rule that “one whose, land is taken by eminent domain is entitled to be compensated in money for the fair value in the market of that of which he has been deprived and in ascertaining that value, all of the uses to which the property is reasonably adapted may be considered.” They must follow the rule of damages that the complainant is entitled to the difference between the value of the property before the building of defendant’s dam and afterwards.
They should be reminded of the provision of our State Constitution that “private property shall not be taken for public purposes without just compensation and only when the public exigencies require it”; and that, although our Court has somewhat reluctantly consented to regard the improvement of our rivers by the building of power dams as a public purpose, in view of the long acquiescence in that theory and the vested property rights acquired under it, it has never gone so far as to even intimate that in the face of *49the constitutional provision, the owner of the land taken is not entitled to “just compensation.”
Unless all of these factors are considered by the commissioners, injustice to the complainants must result. The chief value of the land taken may be “that it has a privilege upon it.” Its value may be “greatly enhanced by the fact that its topography is such that a dam may be maintained across a stream upon it and water power thereby created.”
The ruling below excludes all evidence on these various matters. It forbids their consideration by the commissioners. If sustained by this Court, it forces one of two conclusions — either that riparian rights are not property, a position never yet taken by any court; or that, under the Mill Act, private property may be taken without just compensation, thus irrevocably stamping that ancient statute as not of doubtful constitutionality but of undoubted unconstitutionality. Apparently the sole excuse for accepting such a theory, — condemned by Story and Kent, rejected by the courts of England and by the courts of every American state which have considered the subject with the exception of Massachusetts, denied by Angelí, Gould, Farnham and all other standard text-writers,- — - is that, based upon an obsolete view of the common law, the Massachusetts court adopted the rule for which defendant contends.
In the face of precedent, logic, reason, and a decent regard for the rights of private property owners, such a ruling should not stand. Complainants’ exceptions should be sustained.
Dunn, J., concurring in dissent.