dissentiente. — As I cannot, after the most deliberate consideration, concur in the opinion of the majority of the court, I shall state my reasons.
The Youghiogeny was declared a highway on the 13th April 1782. It is not so long a stream as Pine Creek or Toby Creek, and perhaps does not pass, in a year, so much water as either of those streams, or as French Creek, or Bald Eagle, or Fishing Creek, in Columbia county, or some other streams, called creeks, in this State. It is, therefore, within the letter and spirit of the *116Act of 23d March 1803, which permits persons holding lands on any navigable stream declared by law a highway, to erect a dam for a mill or other water-works on the same stream, adjoining his own lands, and to keep the same in good repair, and to lead off the water, &c., with a proviso as to obstructing the navigation, and a proviso that the person so erecting said dam shall not in-* fringe upon or injure the rights or privileges of any owner or possessor of any private property on such stream. Before this stream was declared a public highway, the right of the riparian owner was the same as it became by this law, except that the law restricted the height and slope of the dam.
I understand the opinion of the court as admitting (what could not be denied) that a license, which could not be enjoyed without, and which was followed by the expenditure of money and labour, is irrevocable. In this case it was followed by a dam across the stream about two feet high, but so constructed as not to injure the navigation, and a large stone mill, two stories high — and to erect these cost much labour and expense. It restored the owner of this mill to the same right as -before the Act of 1782, except as to the height and shape of the dam. His dam was no longer a nuisance, and no person could remove or injure it with impunity. 3 Serg. Rawle 273; Criswell v. Clugh, (3 Watts 330). The State, after a mill had been erected under this law, had the same right as it had in all other cases, viz. to take the water of this stream or to overflow this mill, in improving the navigation of that stream, or any other navigation, upon payment for the damage, and it had no other right, and could give no other right.
There is sometimes a little confusion as to what is a contract. There is as much contract as to this dam and mill, as to the land adjoining, or to any house or barn or land in this State; and rather more, for there is an express legislative permission to make the dam and build the mill. I do not contend that the operation of the Act of 1803 ties up the State from making public improvements, but it puts the dam and mill under the protection of the law, and they cannot be taken or destroyed without compensation.
I shall not cite authorities to prove that a man specially injured shall in all cases have remedy by action. It was at one time doubted whether actions of trespass or case lay against a corporation. It has been long settled that a corporation is as liable and suable as an individual. In Turnpike Co. v. Rutter, (4 Serg. & Rawle 6); and Riddle v. Merrimack Canal, (7 Mass. 169), this point was very fully argued and considered. But I have higher authority. By the Constitution of this State, art. 9, § 10, no man’s property shall be taken or applied to public use without the consent of his representatives, and without just compensation being made. § 11: That all courts shall be open, and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice adminis*117tered without sale, denial or delay; and in article 7, § 4, the Legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of said property, or give adequate security therefor, before such property shall be taken.
It is remarkable that neither the plaintiff nor the defendant read these clauses of the Constitution. The assertion that property could not be taken was made; but the 11th section, giving the right to sue and obtain redress, was never mentioned, nor, as I recollect, alluded to; and, in my opinion, it is most material and compulsory on the court to grant redress.- I have more than once expressed my opinion as to the frequent resort to constitutional question, where there is no such question in the case. There is, and must be, an unlimited power, on certain subjects, in every government; and it is often right, and often practised by the Legislature, to acton this principle. The use of a written Constitution is to fix limits to this otherwise absolute power; and in this sense peculiarly it is the supreme law of the land. Whatever is absolutely prohibited or positively enjoined cannot be altered until the Constitution is changed by the people, or by a revolution. The last words of the Constitution are : “To guard against transgressions of the high powers we have delegated, we declare that everything in this 'article is excepted out of the general powers of Government, and shall for ever remain inviolate.” Now the prohibition to take or apply private property without compensation, and the command to the courts to give redress, are both in that article, and the act of a Legislature which should so take or apply it, or of a court which should refuse redress, would each be contrary to the letter and spirit of that instrument.
But an opinion, not called for in that case, given, too, after all that was material had been rightly and clearly decided, has been cited in this case. 6 Wharton 45, 6. The court had rightly decided that the street of an incorporated town or city was a public highway, (so much so, by-the-bye, that the Quarter Sessions cannot vacate it as they can common highway), and that no one person had more right to it, as a highway, than every other person had. Instead of stopping here, it went on to say that taking, meant taking away altogether. 5 Conn. 166; 6 Cow. 525. Now where no person has an exclusive right to a way, he cannot be deprived of any individual right, so long as it is an open highway; and whether it is changed to a turnpike or macadamized road or a railroad, it is still a highway; belongs to the public, and may be improved, altered, &c. by the Legislature. No individual has any private right in it, and none can be taken from him.
But Clark’s Ferry and Richter’s Spring have been mentioned. The Susquehanna was a public highway before any right in Clark; he purchased both shores, and had a ferry. The northern road to *118Pittsburgh and the road up the Susquehanna crossed at his ferry. Long before any canal, the Northern Turnpike kept above the mouth of the Juniata, and the ferry was moved to suit the travel-ling. Soon after, a bridge was erected over the Susquehanna, just below the ferry, and everybody crossed on the bridge, and the ferry was abandoned. The same thing happened at Harrisburg, where two ferries, one below and the other above the island, were abandoned, though no canal was near them, and at Sunbury, and Derr’s Towm, and Dansville, &c. As to Richter’s Spring, the injury to it was only a figurative one in the counsel, and the court (opinion by myself) did not know that the canal was on the island, and the spring was near the main shore, with a branch of the river between it and the island, and no dam below to throw the water back on it, nearer than the mouth of the Juniata, about thirty miles below it.
Judgment reversed.