If the act of 1840, under which this complaint was brought, is not in conflict with the constitution of the United States, or the ordinance of 1787, the judgment of the court below must be reversed.
The overflowing of the land of the plaintiff in error, by reason of the dam of defendant in error, is not denied, but the owner of the dam contends that he is prosecuted for the damage done, in an irregular manner; that he ought t® have been proceeded against by writ and pleadings at common law, and not by complaint under the statute. It would be right, I think, to tell the plaintiff in error he must define his position. If the law of 1840 is unconstitutional, he has no justification for raising a dam and overflowing his neighbor’s lands ; and on his own showing he comes into court a trespasser, and is not entitled to be heard. If, on the contrary, that law is valid, the proceedings against him were regular, and he has no ground to complain. But as the question involved in this case is one of wide-spread interest, and public confidence may be unsettled until the mam point shall be decided by this court, I will proceed to its examination with as much brevity as possible.
It never could be urged against the people of the United States or their ancestors in England, that they did not maintain a sacred regard for the rights of private property. More than six hundred years ago it was declared in Magna Charta, chapter 29, “ That no freeman'should be disseized of his freehold but by the law of the land.” Lord Coke expounds “ the law of the land ” to mean “ due process of law.” The constitution of the United States adopts the language of *133Lord Coke, and also adds (sec. 5, Amendments) : “ Nor shall private property be taken for public use, without just compensation.” The same provisions are incorporated into the constitutions of New York and several other states of the Union.
The ordinance of 1787, which was the fundamental law of Wisconsin at the time the present suit was commenced, declares that “ no man shall be deprived of his liberty or property but by the judgment of his peers or the law of the land.” But for these wise restraints upon legislative power, the right of government, as a sovereign authority, to take the property of individuals for public use, would be absolute ; and that,, too, without even allowing any direct compensation. See 5 Term. 794; 1 Nott & McCord, 387; Vattel, Book 1, ch. 9, § 103.
The right to appropriate private property for private use has been deemed to be precluded by the provision authorizing it to be taken for public use, only upon just compensation. The main question in the present case is, whether the land overflowed by reason of the mill-dam erected by the defendant in error, was taken for public use. A preliminary question is raised, whether the proceeding by complaint under the statute is by “ due process of law,” and “ according to the course of the common law.”
The act of the territorial legislature, approved January 13, 1840, contains the following provisions :
Seo. 1. Any person may erect and maintain a water-mill and a dam to raise water for working it, upon and across any stream that is not navigable, upon the terms and conditions, and subject to the regulations hereinafter expressed.
Seo. 2. No such dam shall be erected to the injury of any mill lawfully existing either above or below it, on the same stream, nor to the injury of any mill-site on the same stream on which a mill or mill-dam shall have been lawfully erected and used or is in the process of erection, unless the right to *134maintain a mill on such last mentioned site shall have been lost or defeated by abandonment or otherwise ; nor shall any mill or dam be placed on the land of any person, without such grant, conveyance or authority from the owner as would be necessary by the common law, if no provisions relating to mills had been made by the statute.
Sec. 3. The height to which the water may be raised, and the length or period of time for which it may be kept up in each year, shall be hable to be restricted and regulated by the verdict of a jury, as hereinafter provided.
Sec. 4. Any person whose land is overflowed, or otherwise injured by such dam, may obtain compensation therefor upon his complaint before the district court for the county where the land lies, etc.
The subsequent sections prescribe the mode of proceeding and estimating the damages, by a trial by jury, and judgment of the court. The jury are directed to find the annual damage and also the gross amount of damage; and the complainant may elect between them, and may also have a new assessment at the end of every ten years. Section 28 is as follows : “No action shall be sustained at common law, for the recovery of damages, for the erecting, maintainiug or using any mill or mill-dam, except as provided in this act.”
This act technically takes away the right to sue “ at common law.” The ordinance of ’87 declares that the inhabitants of - the northwest territory shall be entitled to “judicial proceedings, according to the course of the common law,” while the constitution of the United States, as we have seen, prohibits the taking of private property except by “ due course of law.” It is contended that the complaint authorized by the statute is in derogation of this common right of the citizens of Wisconsin ; that they are subject only to process known to the common law. If this were admitted, the rights of our people would be dependent upon mere matters of form; very many of our legal proceedings, such as suits *135in equity, references out of court, adjudications by judges of probate, etc., would be fatally erroneous. The defendant in error would be driven back to the original writ, which became obsolete in practice before the present century. In general, “ due process of law ” has been construed to mean a legal proceeding under the direction of a court. If there had been a trial by jury, “a judgment of peers,” in the language of the older writers, the question of regularity has never before been raised on constitutional grounds. Indeed, if we ‘look into the practice of the several states of the Union, as well as of the British .parliament, there will be found a wide departure from even this original understanding of the rule. As early as 1796, in the state of New York, by a legislative act, the property of private persons was authorized to be taken on an assessment of damages by commissioners. See the act in relation to the Albany water wat'hs. And the same or like modes of assessment have been adopted and sanctioned, after great discussion and consideration of the subject, in almost all the states., See cases cited in Beekman v. Saratoga & S. R. R. Co., 3 Paige, 45. Were we now to declare this law unconstitutional, on the ground that it authorizes a judicial proceeding not “ according to the course of the common law,” we should run counter to the decisions of courts, of legislatures and constitutional conventions for the last half century. It is enough to know that the substantial rights of the party are protected by forms prescribed by law.
It remains to be seen whether the act can be sustained under the other branch of inquiry. Is the appropriation of land for the use of water-mills, in any right sense, a “public use ? ” ■ To arrive at a correct conclusion on this subject, we must look at the acts and judicial decisions of other states. We should commit a great error if we assumed that public use is confined to such appropriations as the government may have occasion to make for the common defense and safety, when acting by its officers and agents in cases of emergency. *136Such, cases sometimes occur; but it far more frequently happens that the right to take private property for public use is exercised in a manner less direct for objects less general. “The utility of highways, canals, bridges, and, in a word, of all safe and commodious ways of communication (says Yattel) cannot be doubted. And hence, direct taxes and forced contributions for these purposes have been regarded as equally just and necessary in all civilized countries.” Modern states, however, have found it more convenient to devolve upon private individuals and corporate bodies the exercise of this useful if not indispensable power. In New York, special agents have been made in a great variety of cases. The franchise has been granted to secure the improvement, and the public benefit is generally regarded as an equivalent for the franchise.
In some cases public tolls have been exacted, or specific burdens or duties imposed, though this has never been considered essential to the right. 3 Johns. Ch. 166; 4 Wend. 1; 3 Paige, 12; 18 Wend. 45.
The same principle may be pursued through the legislative acts and judicial proceedings of every state in the Union, and it will be found as diversified in its objects as in the modes and means of its application. In Beekman v. the Saratoga & S. R. R. Co., supra, the subject was discussed with great learning and ability, and the doctrine laid down by Chancellor Walwoeth, in language so clear and appropriate, that I will quote it at length: ‘ ‘ The right of eminent domain, however, does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer. And if the legislature should attempt thus to transfer the property of one individual to another, where there can be no pretense of benefit to the public by such exchange, it would probably be a violation of the contract by which the land was granted by the *137government to the individual, or to those under whom be claimed title, and repugnant to the constitution of the United States. But, if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose. 2 Kent’s Com. 340.
It is upon this principle that the legislatures of several of the states have authorized the appropriation of the lands of individuals for mill-sites, where, from the nature of the country, such mill-sites could not be obtained for the accommodation of the inhabitants without overflowing the land thus appropriated. Upon the same principle of public benefit, not only the agents of the government, but also individuals and corporate bodies have been authorized to take private property for the purpose of making public highways, turnpike roads and canals ; of erecting and constructing wharves and basins; of establishing ferries and draining swamps and marshes, and of bringing water to cities and villages. In all such cases, the object of the legislative grant of power is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the government, or through the medium of corporate bodies or of individual enterprise. And, according to the opinion of Chief Justice Marshall, in the case of Wilson v. Black Bird Creek Marsh Co., 2 Pet. 251, measures calculated to produce such benefits to the public, though effected through the medium of a private incorporation, are undoubtedly within the powers reserved to the states.”
It thus appears that the constitutionality of the right has never been measured by the precise amount or degree of the public benefit to be conferred. Is there any good reason why water-mills should not be regarded as public improvements ? *138Why the legislature should not favor their construction, especially in a new country, among a scattered population and where capital is limited ? In the early history of New York, special acts were granted authorizing the owners of mills to overflow the lands of others, by dams. See Kent and Rad-cliff’s Laws, p. 49. In Ohio, such acts have been more or less in operation for many years. In New Hampshire and Maine similar laws are in existence, and in Massachusetts, from which our act is derived, for more than one hundred years its constitutionality has never been questioned, either by her enlightened courts or her sagacious and liberty-loving people. It seems to me a strong argument is derived from the concurrent opinions of the people of other states ; and if it might be assumed that in copying their statute laws we took also the decisions of their courts in respect to them, the authority would be almost conclusive. The supreme court of the United States has repeatedly held that a cotemporary exposition of the constitution, adopted and acquiesced in for a period of years, fixes its construction. 1 Cranch, 299 ; 10 Wheat. 159. The mill-dam .law of Massachusetts has survived repeated revisions of her laws, and even changes of her constitution and revolutions in her government, and since its adoption in Wisconsin our people»have passed from territorial dependency to state soverignty, and this law has not only been sanctioned by the direct action of territorial courts, but has received the tacit sanction of two constitutional conventions, never, I believe, charged with any disregard of private rights. After all this ; after it has rested nine year’s unquestioned on our statute book; after it has become alike the source and the guaranty of' important vested interests, it would seem to me an inauspicious act of the new judiciary of the state to lead the way in pronouncing it unconstitutional and void from the beginning.
The objections to this law are addressed to the wrong tribunal. They relate to its expediency and not to its constitu*139tionality. Wherever there is even an apparent public interest to sustain a public act, the legislature and not the court is the proper judge of its necessity. The question in all such cases, is not, whether the law is indispensable, but whether -it may be useful and convenient. Eailroads can, in no proper sense, be said to be indispensable; neither can toll-bridges, waterworks and many other works of improvement which more or less interfere with private'rights. Streets and alleys in cities are oftentimes not only indispensable, but of even questionable utility. And yet the legislative power alone, or such subordinate person or body as it may designate to judge of their expediencey, has ‘ been permitted by common consent to act as the sole arbiter in extending them over private grounds. Never, unless in cases of palpable and wanton abuse of power, or when the evidence of a departure from the rule of public use is manifest on the face of the act, can the courts properly interpose and declare such acts void. I understand the cases cited in argument, from 11 Wend.; 19 id. 659 ; 5 Hill, to be precisely instances of this sort, and, therefore, authorities in favor of and not against the position here assumed. It is true that the learned courts of New York have closely swept the boundary line between the judicial and the legislative provinces ; but a careful examination of the facts will show that the dividing barrier has been made more visible, not overthrown. In the proper case, I trust this court would assume its due responsibility in abrogating laws which infringe upon constitutional provisions. But the rights of individuals will be better protected, the enjoyment of property will be rendered more secure, and general confidence in the aclminstration of justice will be more firmly established, if we lean to the side of sustaining rather than impairing public acts which have heretofore been unquestioned, and which originated in the wisdom of a co-ordinate branch of the government. The remarks of Chief Justice Maeshall, in Fletcher v. Peck, 6 Cranch, 128, are sound and appropriate to the present dis*140cussion : “ The question whether a law be void for its repugnance to the constitution, is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its power, and its acts be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”
Were the question open for a discussion of the expediency of this act, many weighty reasons might be assigned for continuing it in force. Aside from disturbing vested interests and deranging business relations, there is to my mind a public utility, both in the good which it aims to accomplish and the evils it is designed to remedy, which commend it to public favor.
The law abhors a miiltiplicity of actions. It favors peace and repose. No tyranny has been found more odious in the older states than is sometimes exhibited in the pertinacious obstinacy of one man, who pursues his common-law right of resisting the occupation of his land, perhaps of some small and insignificant but indispensable portion, for the puipose of a null. The graceless privilege of commencing daily suits for the daily infringement of constitutional rights is often less detrimental to the enterprising individual, who may be its victim, than to the community, who are common sufferers. The statute which cuts off the common-law privilege of such a man to indulge in litigious malice, and which secures to him ample compensation by a single action for his property taken for. public use, is surely benign in its effects, and harmonious with the spirit if not the letter of the constitution. Such a law, also', by inviting capital into the interior of the state, by *141encouraging enterprise and diffusing,the conveniences of social life, enhances tbe value of land, advances its settlement, and promotes general civilization.
In making these suggestions, I am not unmindful that a different view of the matter was urged by the counsel in the argument. It was ably and earnestly contended that the law in question infringes upon common right; that even the slightest departures from abstract justice are dangerous, and that public liberty requires perpetual vigilance in resisting the exercise of unauthorized power. These positions, in the abstract, are not denied. But they come far short of warranting a direct interference by this court to assert the paramount authority of the constitution over the discretion, wisdom and authority of the legislature. I forbear, however, to pursue the discussion.
The judgment of the circuit court is reversed, with costs.