concurring.
I agree in the conclusion reached by Judge Sedgwick that the dam should not be destroyed, but I only partly agree to the things said in the main opinion, and I wish to give my understanding of what I conceive to be the principle which should be applied.
Flour may be manufactured by an aggregation of capital applied to the development of water power and ma*562chinery. A private person maj' not manufacture flour for his own use because of lack of' capital and lack of machinery. The manufacture of flour by private persons or corporations for commercial purposes would seem to be a private use for a public purpose. When each person who comes to mill pays for his grinding by a toll taken from the grist the mill is then a grist-mill. This was the old method. Tt has been in a very large degree, perhaps entirely, superseded by the method of barter and exchange; that is, the man who comes to mill brings a load of wheat and takes away a certain amount of flour which be re ceives in exchange for the wheat. This would seem to be tbe method in vogue at the present time. We have outgrown the ways of our grandfathers, and, according to the standard which existed in earlier times, the flouring mill of today is a commercial enterprise for a commercial use in which the public is interested because the public demands that the flour shall be manufactured and placed upon tbe market where it may be. purchased for the general use of the people, as nearly everybody uses flour.
The thing that justifies the taking of the land and submerging it by water is tbe creation of a water power to be used in the interest of tbe public in tbe conduct of an enterprise to manufacture flour. The mill is for the benefit of tbe public, and it matters not if the old method of taking tolls out of the grists lias been superseded by tbe new method of exchanging so many bushels of wheat for so many sacks of flour. When the wheat is exchanged for the flour, that is a matter in which tbe public is interested, although the actual grinding of the flour is a private enterprise conducted by the miller. It is a public utility because it is a necessity to the public, and the creation and maintenance of the power which creates the flour in order that the public may purchase it is clearly a public utility. The actual manufacturing of the flour is a private enterprise, although the flour when manufactured is for the public use. Is there any serious distinction between the manufacture of flour for the use of the public .and the *563generation of electricity for the use of the public? Do we deceive ourselves with words when we call the'manufacture of flour for the public a private enterprise because it is conducted by private capital? And is the generation of electricity by private capital for public use forbidden because the capital used in developing electricity is private capital? Is it the way the thing is manufactured that determines whether it is for the public use and whether the business is a public utility, or is it the necessity of the thing that is manufactured for the public? May it not be said that, because the public demand the use of the flour and also demand the use of electricity, the manufacture of the flour and the generation of the electricity are both public utilities. In Massachusetts all sorts of mills are treated as public utilities. The rule adopted in Massachusetts consults the welfare and benefit of the public. The mill-streams are there lined Avitli cotton factories, woolen factories, and shoe factories, and, Avhile these enterprises are conducted by private capital, the right to dam up the streams and to utilize the poAver in these various manufactories is for the betterment of the whole people. These occupations give employment to thousands of people. They permit the investment of millions of dollars. These enterprises are held to be. public utilities because of the great public interest in them and because of the great public benefit receiAred by the people.
Section 13 of the Bill of Rights of the constitution of 18(50: “The property of no person shall be taken for public use Avithout just compensation therefor.” The foregoing declaration of rights Avas in force when the property in question was taken. The constitution itself does not specify a particular use, as the manufacture of flour alone or corn-meal or feed or lumber, but it is just the taking of the property for “public use.” The provision of the constitution of 1866 was followed by section 21 of the Bill of Rights in the constitution of 1875, and that section contemplates the taking or damaging of property for “public use,” and it does not provide that after the prop*564erty is taken for public use it shall be used for any special purpose. Chapter 57, Comp. St. 1911, contains the original section as it is now amended. This section contemplates erecting “a dam across any water-course for the purpose of building a water grist, saw, carding, or fulling mill, or of erecting any machinery to be propelled by water.” Section 1. The section appears to have been intended to cover the things known when the act was passed, and then, seemingly as an afterthought, there is added “erecting any machinery to be propelled by water.” I am unable to conceive of language broader than that employed in the section, and there is seemingly nothing in the constitutions of 1866 and 1875 to forbid the use of the language employed. It is apparent from this language that the makers of the constitution intended to compel the payment to the private owner of the amount of his damages before the property could be taken for public use. As that has been done once and the property lias actually been taken for public use, is there any reason why there should be a second payment when the private owner has been paid once for the taking of his property? Is not that enough? To meet the new conditions of advancing civilization, should the courts say that the narrowest possible construction should be put upon the language used, and that the legislature intended that the power once acquired could only be used for the least number of purposes to which it might be applied? Is it not better that the courts should be liberal in the construction of statutes like this? Is it not better that there should be a degree of elasticity in limiting the legislative power in respect to the right of eminent domain? Section 15, cli. 57, Comp. St. 1911, contemplates the bringing of a petition to obtain leave to build a mill or milk! am. By this language it would seem that the legislature intended that there might be either a mill or milldam, or both. Milldam would seem to be a general term by the construction of which power is obtained and not necessarily to run any particular kind of mill. Section 24 of the same act seems to contemplate a *565“milldam belonging to any mill or machinery.” It authorizes the owner of the mill to enter upon lands contiguous for the purpose of repairing embankments to prevent the water from breaking through in case of flood. Section 27 of the same act makes those mills which grind for toll public mills. Section 33 of the same chapter provides for changing a public mill into a private mill. This may be done by posting a notice on the mill and in two other conspicuous places within the county, and by reimbursing those people who have assisted in the erection of the public mill. It is not, however, contemplated that because the mill becomes a private mill the milldam shall be abandoned or destroyed.
It will be seen by this that the legislature did not contemplate the exclusive application of the power to a mill grinding for toll. Putting it the other way, the legislature contemplated the ad quod damnum proceedings and the payment, of damages and the use of the power obtained for the running of a private mill. It is undoubtedly a public utility to build a dam and a mill for the manufacture of flour. To build such a mill and to manufacture flour is a private enterprise conducted with a public purpose. It may be a private enterprise to generate electricity for the use of the public with which the public may light its streets and buildings. Is the use of the power to manufacture flour more a private enterprise than the use of the power to generate electricity? By virtue of the ad quod damnum proceedings, the plaintiffs in this case sold to the original proprietors the right to flow their lands. Their lands were originally overflowed for the purpose of furnishing power to run the mill. The thing that the plaintiffs parted with was the right of the petitioner in the ad quod damnum proceedings to overflow their lands along the creek in consideration of the money which he paid to them for that privilege. They have been paid once. Can it be of any serious moment to them whether their lands are overflowed for the purpose of furnishing power to a mill that grinds flour which the public purchase and *566use, or a mill or machinery that provides something else which the public need and uurchase and use? The people who own these lands agreed that their lands might be submerged, and they were submerged. They are only submerged yet.
It is contended, with ingenuity and force, that only the things can be done which were in contemplation of the original jury that sat in the ad quod damnum proceedings. The theory is that there can be no growth or change. The theory is that it must be a “grist-mill,” and that it cannot be anything else. It would hardly seem that this contention is fair in view of the provisions of the constitution and in view of the provisions of the statute. The words used, “erecting any machinery to be propelled by water,” certainly suggest that it was, in contemplation of the legislature that something else might be done in addition to running a flour-mill. If this be not so, then is there any purpose in using the words “erecting any machinery to be propelled by water”? If the right was granted for the purpose of using power, what difference can it make to the grantors whether the power is applied to one purpose or-another? They have consented that the water may be backed up the stream, and that their lands may be submerged so that the power may be created. What difference can it make to them whether the power is applied to one legitimate purpose or another? They have recognized the principle that the power may be created and applied. When the power is created - and has been applied, why should they seek to destroy it?
In view of the able opinion delivered by Judge Sedgwick, I hesitate to write anything in addition, and I only do so because of the fact that the main opinion does not seem to me to fully give the reasons which I believe should be given to justify the conclusion reached.