The declaration complains of the defendants for an injury done to their meadows by reason of the erection and continuance of a dam over Salem Creek. The defendants plead as a justification, that said dam was erected and continued by virtue of an act of the legislature of the state, entitled, “An act to authorise John Denn, of the county of Salem, to shorten the mnigation of Salem Creek, by cutting a canal,”passed November 6, 1818. All which is set out with proper averments. To this plea, the plaintiff has demurred, and the defendants have filed a joinder.
The act in question, (Pampl. L. of 1818, p. 5.) enacts substantially as follows:—
Sec. 1. That John Denn be authorised to cut the canal, as therein prescribed.
Sect. 2. That the canal shall be cut wholly on the land of said Denn, at least twenty-two feet broad at the top and of sufficient width at the .bottom, and depth of water for all vessels naviga*143ting said Creek; and shall when cut and opened, he at all times afterward a public highway, and ht- kept open at least of the depth and width aforesaid, at the sole expense of said Denn, his heirs and assigns.
Sec, 3. That when said Denn shall have completed the canal, as is directed, and obtained a certificate thereof from the Chosen Freeholders of the townships of Mannington end Lower Penns Neck, or a majority of them, and filed the same in the Clerks office of the county of Salem,) “it shall and may be lawful for the said John Denn, his heirs and assigns to build a bridge over the said Salem Creek, for the accommodation of himself, his heirs and assigns, opposite the mansion bouse of the said John Denn,” provided that the land to be occupied in its construction, be bis own, and that he do not by its abutments, contract the creek so as to injure the navigation; and do put a draw in the same, at least twenty-two feet wide, and that ho, his heirs and assigns, maintain said bridge and draw', at their own cost and charges.
Sec. 4. That any person who shall obstruct the digging of the canal, See. or injure the bridge, Sec. shall forfeit one hundred dollars, to said Denn, his heirs and assigns.
Sec. 5. That when the canal shall have been completely finished, and made navigable for vessels as aforesaid, and shall be used am! found sufficient for the space of three years after being first used, “it shall and may be lawful for the said Denn, his heirs or assigns, to stop the creek at the place where the said bridge may have been erected;” from which time, his liability to maintain the bridge and draw, shall cease.
The point presented by the demurrer, is this: does the above act exonerate John Denn, his heirs and assigns, from the payment of damages done to individuals, by stoppage of the creek? Great care has been used by the legislature, in providing another navigable highway for the public, in lieu of that which was authorised to be stopped up. So too, the legislature have provided against all damages (which could be anticipated) to private rights. John Denn was to use no one’s land but his ow n, and every thing was to be done at bis individual expense. But although I think it plain that the legislature never intended to injure private rights, yet the unforseen result is otherwise The meadows in question, *144are admitted by the state of the pleadings, to have been damnified by the stoppage of this crock; and yet the statute which authorises the act, has not provided compensation for tho injury. The constitutionally of the law, is not now questioned; but it is insisted that the Common law right of the plaintiff to recover damages, is in full force. And in this position, I think, the plaintiff is right.
it is a well settled rule, that statutes in derogation of common law' rights, are to be strictly construed; and we are not to infer that the legislature intended to alter the common law principles, otherwise than is clearly expressed. 11 Mod. 149.
Chancellor Vroum, in an opinion delivered in the term of August, 1835, in reference to another branch of the same subject matter, which is now before us, laid down the position distinctly, that the act in question, docs not exempt him who does an injury, from damages; which opinion, thus far, the-counsel contend, is not law.
But the question whether a party who has acted in pursuance of a statute, is protected from damages, where the statute itself is silent, has been before some at least, of our most respectable state courts. In the case of Gardner v the Trustees of Newburgh, et al. 2. J. C. C. 162. a Company had been chartered to sul>ply tl*e town of Newburgh, with pure water, but were restrained by injunction, from diverting a water course, as authorised by the statute, until compensation was made to the owners of the land through which it run, although the act made no provision for such compensation co them; and Kent Cli. observed, that the owner of the lands “would be entitled to his action at law, for the interruption of his right, and all his remedies at law, and in that Court, remained equally in force.”
The case of Crittenden v Wilson, 5 Cowen, 166. is in point. In this case, the Court held that the right of the legislature to grant the privilege of making a dam over the Otselic river, which was a public highway, was too clear to be disputed, but the grantee took it subject to the restriction, sic utere tuo, ut alienum non Isedas. That if no provision for the payment of damages done to individuals, by reason of the dam, had been made by statute, the defendant would still be liable to pay them.
It is true that in Rodgers v Bradshaw, 20 J. R. 735, it is inti*145mated that an exception to this rule may exist in the case of public commissioners acting under direction of the statute, as the ■direct agents of the State in the execution of a great public improvement, and not as volunteers for their own benefit.
in the case of Stephens v Proprietors of the Middlesex Canal, 12 Mass. R. 466, it is said tiiat should the legislature authorise an improvement (as cutting a canal) the execution of which would require or produce the destruction, or diminution of private property, without at the same time giving relief, the owner would undoubtedly have his action at Common law for damages.
These authorities would appear to cover and rule the present case. But it was contended by counsel, that they were decided vi pon their respective States Bills of rights, which declare that private property shall not be taken for public use, without just compensation,and that as our constitution contains no such limit or restriction, the cases have no application, or in other words, that the legislature of New-Jersey being unrestricted by constitutional provisions, is omnipotent, and may take private property for public use, without compensation, whenever it shall will to do so.
The right to take private property for public use, does not depend on constitutional provisions, but is one of the attributes of sovereign power; and the constitution of the United States recognises it as such, when if says, the right shall not be exercised without just compensation. This power to take private property reaches back of all constituted provisions; and it seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of that power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle; Puffendorf, b. 8. Ch. 5, p. 222; 2 Montesquieu, Ch. 15, p. 200; Vattel, 112, 113; 1 Black. C. 139; 2 Kent, C. 339, 340; 2 J. C. C. 168; 1 Peter's Com. R. 99, 111; 3 Story’s Com. on Constitution, 661; Bonaparte v Camden and Amboy Rail Road Company, Bald. R. 220. The language of Judge Baldwin in the case last cited, is “the obligation” to (make compensation), “altadles to the exercise of the power (to take the property,) “though it is not provided for by the State Constitution, or that of the United States had not injoined it.”
*146And Story, calls the provision on this subject, in the constitution of the United State, merely “an affirmance of a great doctrine established by the common law.” This principle of public law, has been made by express enactment, a part of the Constitution of the United States; (vid. 5(h amendment,) but it has been decided that as a constitutional provision, it does not apply to the several States, Barron v Mayor of Baltimore, 7 Peters, 247; Livingston’s Lessee v Moore, 7 Peters, 551, 2. Still if the opinions of the above distinguished jurists be correct, it is operative as a principle of universal law; and the legislature of this State, can no more take private property for public use, without just compensation, than if this restraining principle were incorporated into, and made part of its State Constitution. I have felt it a duty to notice tisis point, thus far, because of its interest and importance in the abstract, and of the great reliance placed upon it in the argument of the counsel, though I scarcely considered it necessary for the settlement of this case, to pronounce upon it a different opinion.
According to my understanding of the act in question, the legislature neither intended to take, nor has it taken, private property for public use, in the sense in which these terms are properly to be understood. For the accommodation of John Denn, they authorised him (if he thought proper so to do,) to stop up a navigable creek, upon condition that he cut a canal at his own expense and upon his own property, as a highway for the public, in lieu of the creek. By the terms of the act, therefore, I think, the legislature has manifested a clear intent to provide against any interference with private property. It merely agreed to give up its right of passage upon the creek, (or in other words, its public property there) for another right of passage equally or more valuable, to be provided by John Denn. The damages which have accrued to the meadow owners, have not arisen from cutting the canal, which in one sense, was for the benefit of the public, but by the stoppage of the creek, ■which was for the individual benefit, or private emolument of John Denn.
The case therefore, is not within the principle laid down in 4 Durn. & E. 796, and Sutton v Clark, 6 Taunt. 29, 41, where it was held that public officers acting under the authority of an act of Parliament, in repairing public streets, were not answerable for *147damages, unless they were guilty of an excess of jurisdiction; Chat the maxim applied, “salits popuii, suprema est lex,” and that if no satisfaction were given by the act of Parliament, the party was without remedy. It is not therefore necessary to en-quire whether or not these cases conflict in principle with those already cited. Gibbs, C. J. in Sutton v Clark, carefully distinguishes the case of a public officer, who is bound to execute a duly imposed on him by statute, from that of a mere volunteer, who acts not for public purposes, but private emolument. I think it can hardly be pretended, that John Denn, stopped Salem creek for public purposes under any obligatory directions of the statute. So far from this, it is evident on the face of the act, that it was (lone voluntarily and for his own accommodation. The most that can be said for him is, that by cutting the canal, he paid a consideration to the public, for the priviledge of doing so.
The powers given by the act to John Denn, are such only as lie would have had, if the creek in question liad been his own. He can build his bridge over it, or dam it up, at his pleasure, and his bridge or darn cannot he complained of by the public, asa nuisance; but if in exercising his rights, he damnifies the property of his neighbors, he is liable, like every other citizen, to respond in damages to the amount of the injury.
Judgment must be entered for the Plaintiff on demurrer, with costs.
Nevius, J.The declaration in this case sets forth that the plaintiff'was seized in fee on the first day of July 1835, of several tracts of meadow land, containing together one hundred and thirty acres more or less, situate in the township of Lower Penns Neck in the county of Salem, adjoining an ancient stream of water called Salem Creek, the water of which from time immemorial has and still ought to run in its ancient and usual channel alongsaid lands without obstruction. That the defendants, meaning to injure the plaintiff in the enjoyment of his said lauds, and to deprive him of the profits arising therefrom, on the day aforesaid,did raise and build anew, a dam across said creek, without the plaintiff’s license.and below his said lands,and have continued the same,and so obstructed, heightened and impeded *148the flow of said stream, that afterwards, on the day aforesaid, anti on divers other days between that day and the 18th of June 1836, the waters of said creek did not run off or subside low enough to let the rain water and other water run off said lands, out of the sluices and water works of said lands, as formerly,before the said dam was erected; but by reason of said dam,the flow of the water in said creek prevented the water in the ditches and drains on said lands from running off and draining the same as before, and that by means of said dam the said lands have been and are overflowed, and the herbage and grass thereon drowned and destroyed, and rushes and worthless grasses, and noxious weeds, by reason thereof, have grown up and spread over the said lands, and the same rendered useless and unproductive, and impassable for men and cattle and teams, and the ditches and drains filled up and rendered useless, by means of which, the plaintiff is injured and aggrieved, and sustained loss, in bis said lands and is deprived of the benefit and advantage be was accustomed to have from them, before the erection of said dam, and has sustained damages to the amount of five thousand dollars.
To this declaration, the substance of which is above stated, the defendants have pleaded
1st. The general issue.
2nd. That by an act of the Legislature of New Jersey, pas-the 6th day of November, 1818, entitled “an act to authorize John Denn of the county of Salem to-shorten the navigation of Salem Creek, by cutting a canal. It was enacted (setting forth the act in full) in substance as follows, viz. That John Denn be and hereby is authorized to cut a canal to shorten the navigation of Salem Creek, describing the course of such canal to be on the line between John Dean’s land and the land of David Ware.
2nd. That it shall be wholly upon the land of John Denn, and 22 feet in width at the top,and of sufficient width at the bottom,and sufficient depth of water'throughout, for the free passage of all vessels navigating the said Salem Creek; and shall be a public highway and kept open of the depth and width aforesaid, at the sole expense of John Denn, his heirs and assigns forever, and he and his heirs are bound accordingly.
3d. When the canal is opened and completed, and John *149Denn has obtained a certificate of the Chosen Freeholders, or a majority of them of the townships of Mannington and Lower Penns’ Neck, that the same is completed and sufficient for the purposes aforesaid, it should be lawful for the said John Denn, his heirs and assigns, to build a bridge over Salem Creek opposite his own mansion house, for the, accommodation of him, his heirs and assigns; provided it be upon his own lands, and have a sufficient draw so as not to obstruct the navigation of said creek, and that he, his heirs and assigns should always maintain said bridge at his and their own costs and charges.
4th. That any person obstructing the construction of said canal, or injuring its banks, or the bridge or draw, should forfeit to the said John Denn, his heirs or assigns one hundred dollars.
5th. That when the canal should be finished and made navigable and shall be used and found sufficient for the space of three years after being first used, it shall bo lawful for the said John Denn, his heirs and assigns to stop the said creek at the place where the said bridge shall have been erected, and from that time, their liability to keep up said bridge and draw shall cease.
The plea then proceeds to aver that John Denn, named in the said act, cut the said canal to shorten the navigation of Salem creek, and that the same was constructed in the place and manner directed and required by said act, and has at all times since been a public highway and kept open according to the requirements of said act, at the expense of him the said John Denn and his assigns. And that having completed said canal, he obtained the required certificate, which was filed according to law', after which he erected a bridge at the place, and of the description required by said act, and for the purpose named in said act.
And it further avers that the said John Denn having finished the said canal, and made it navigable agreeably to said act, and the same having been used and found sufficient for more than three years after having been first used, he, the said John Denn, erected the said dam and stopped the creek at the place where said bridge had been erected.
And it further avers that on the 17th of April, 1834, Isaac Johnson, one of the defendants, purchased of John Denn, all his *1503'ight, title, property, claim and demand in and unto the said lands on each side of said bridge, ami in and unto the bridge, dam, stopping and privileges as granted by the said act, by deed of conveyance (which is set out in said plea} and that on the 29th of January, 1835, Isaac Johnson conveyed the one moiety thereof to-William Johnson, the other defendant; and that the said defendants being the assignees of the said John Denn as aforesaid, entered upon and raised and new erected the said dam as lawfully they might do, and this they are ready to verify, &c.
To this plea, the plaintiff has filed a general demurrer, and insists that the same constitutes no legal answer or defence to the cause of action set forth in his declaration. The defendants by this plea do not deny the injury complained of by the plaintiff, but justify their own acts under the authority of the legislature, as contained in the act of 1818, and insist that they are not responsible for such injury. The demurrer admits the truth of the matters alledged by the plea, and denies that they constitute a justification or defence of the acts complained of.
The character of this act of the legislature by which Johns Denn was authorized to construct this canal, becomes the first subject of inquiry. Is it a public act and designed exclusively to promote the interest and convenience and welfare of the public, and was this authority vested in John Denn as an agent on the part of New Jersey, to carry into effect an object of public interest or importance? Or is it to bo considered as a mere private act, designed to secure or advance, or protect the prívalo interest of John Denn, ills heirs or assigns; or is it to be esteemed as an act designed for private purposes, whilst at the same time it might incidentally promote the public interest. A correct answer to these questions, may and will have an important bearing upon the decision of the case. If the statute is wholly of a public character, and designed exclusively for the public welfare, and John Denn is to be esteemed as the agent of the Government, employed under this act to effect in the name anti for the use of the State, a public improvement wholly distinct from any private interest, I cannot doubt but that the plea is a complete answer to the complaint in the declaration.» Where the State authorizes an act to be done exclusively for the public interest, and appoints an agent to execute that act, and such agent *151shall act within the scope of his authority, he cannot be personally responsible to individuals for tiie consequences of executing his commission. Should private property be necessarily and unavoidably injured, taken away or destroyed by the execution of such trust, without any compensation provided in the act itself, the remedy can only be by contesting the constitutionality of the law, or appealing to the. justice and magnanimity of the legislature. But if the statute has provided a mode of compensation in such case, the party injured must resort to that and cannot pursue his common law remedy, by resorting to a suit at law. In support of these general positions,! refer to the case of Rogers v. Bradshaw 20th John. R. 735, decided upon a very conclusive argument in the Court of Errors of New York. And also, to the case of Calkins and others v. Baldwin, reported in 4th Wendell 667, and the case of Steele v. Prest. &c. Western Inland Lock Navigation Company, 2 Johns. R. 283; and also to the case reported in 4 Taun. 44.
Bui if on the other hand, the act of the legislature is tobe considered of a private character, designed to confer upon John Benn exclusive privileges for his own private and individual interest and convenience, and if the act itself in nowise violates any constitutional provision, and does not in terms provide compensation for private property that may he taken, injured, or destroyed, the same not having been foreseen: John Benn or his assigns must execute that act at their peril and must respond for all consequences that may result from it to private property. See Crittenden v Wilson, 5 Cowen, 165. And why should it not be so? The legislature cannot take private property for public purposes) whithout compensation, much less can they take it for private purposes, or take the property of one citizen and give it to another. I refer also, to the opinion of Chan. Vroom, rendered in a case between the same parties, where this question was distinctly raised, and underwent a full examination. In the present case, if the design of the legislature was to confer upon John Benn, his heirs and assigns, a personal and private privilege, for his own exclusive use and interest, he can protect himself by virtue of such act, only against any public complaint. It may be lawful for him and his assignees, to execute this act, so flu* as the public interests, the rights of navigation, *152fishing, &c. are concerned, and he may plead, and successfully plead the act, to any indictment for a nuisance, or against any complaint for an infringement of a public right, but cannotplead it as a justification for a private injury, which may result from the execution of the statute.
Or again, if it is to be esteemed an act to promote the interest of John Benn whilst the execution of it may incidentally advance the public interest, I apprehend the same construction is to be given to it as in the latter case. And the defendants are to be answerable to the same extent for any consequences resulting from the execution of the act as if it was wholly a private act.
Upon examining this act,I cannot view it in any other light than a private act and intended for the benefit of John Benn. He seeks the privilege of erecting a dam across a navigable stream, and the legislature having the constitutional right to grant such privilege, (see Wilson et al v The Black-bird Creek Marsh Company. 2 Peters, 245) do grant it and impose upon him certain terms, among others thatTie áhai! construct a canal to answer the purposes of navigation. ; It is to be of sufficient depth and width to admit the passage’of such vessels as were used to navigate this creek.- It, was to.be Constructed upon his own land and at his own expense, and foi'evcr to be kept in repair at his own cost, to be fairly tes.ted*a'nd tried, before the grant to him to erect a dam, should become complete and absolute. Nor was it made incumbent on him to construct this canal. After the passage of the act it was entirely optional with him whether he would construct it or not. It was not made obligatory except he availed himself of the benefit of the grant, by the erection of the dam. In all these particulars, the act bears no resemblance to a public act. It would seem to have been induced by (he application of John Benn himself, and in its passage, the legislature seem only to have been careful to protect the public interests. The construction of this canal was a permission and not a direction or obligation imposed upon the grantee; it was an authority to do it, not a requirement. Nor does the language used in the title and in the first section of the act “To shorten the navigation of Salem creek,” at all changes its character. It was essentially and to all intents and purposes a private act and designed for the benefit of John Benn and only induced by the consideration that it *153might not be injurious to public interest, but that the public interest might thereby be incidentally promoted.
Does this act then confer upon John Derm and his assigns, the right to take, injure or destroy private property, without compensation to the owners. If it does, it is unconstitutional and void, and in violation of natural justice, and therefore would not be a defence to the plaintiff’s claim. If it docs not confer such right, it constitutes no justification, and the plea cannot therefore be sustained. The legislature are to be considered as conferring nothing but what they had a constitutional right to grant. They could not grant to him the right to overflow the land of the plaintiff, or in any other way to injure or destroy it without compensation, and if no such compensation is provided for, the plaintiff has a right to seek ins remedy through courts of justice by suit. It is no answer to say that the party injured must or may resort to the justice of the legislature. If such be it is of too vague, indefinite and uncertain a cha^fct zed by courts. The constitution and lawsCfstate can n'éper leave the citizen such remedy only, I'<)r a 1 hiamip* his private rights, Nor is it an available m^miinPVosay tlrnt if the defendants, as the assignees of Johnfoej^tj^j^Jgjj^oKd to the plaintiff in this action for the injury tc^iis property byjiff a-son of an act authorised by law, the consequetlets^S^lfieni may be ruinous, and the work contemplated by the act, absolutely prevented. Suppose it to be so, may it not be answered that in accepting the grant,they acted voluntarily, and should have foreseen arifi provided against the consequences, and would it not be equally if not more unjust and oppressive upon the plaintiff, to ruin and destroy iiis property, without the slightest compensation orrecotnpense.
I am of opinion that the plea is no justification to the act complained of, and that the demurrer therefore be sustained.
IIortíbT.ovvEe, Cu. J. concurred in sustaining the demurrer. He had not time to prepare a written opinion. ;
Ford, J. Read an opinion sustaining the demurrer.
White, J. was not present at the argument, and gave no opinion.
Judgment for Plaintiff, on the demurrer, with costs.