The arrangements in this case with the mill-owners, were made by contract, and not by force of any arbitrary power, and the success of the enterprise, in the drainage of the lands, the prevention of damage by floods, especially in hay and harvest-time, and in the improvement of the health of vegetation, as well as of man and animals, is said to be strikingly manifest.
This act provides for a "water-bailiff," whose duty it is to inspect the rivers, streams, water-courses, &c., and enforce the due maintenance of the banks, and the uninterrupted discharge of the waters at all times.
COMPULSORY OUTFALLS.
It often happens, especially in New England, where farms are small, and the country is broken, that an owner of valuable lands overcharged with water, perhaps a swamp or low meadow, or perhaps a field of upland, lying nearly level, desires to drain his tract, but cannot find sufficient fall, without going upon the land of owners below. These adjacent owners may not appreciate the advantages of drainage; or their lands may not require it; or, what is not unusual, they may from various motives, good and evil, refuse to allow their lands to be meddled with.
Now, without desiring to be understood as speaking judicially, we know of no authority of law by which a land-owner may enter upon the territory of his neighbor for the purpose of draining his own land, and perhaps no such power should ever be conferred. All owners upon streams, great and small, have however, the right to the natural flow of the water, both above and below. Their neighbors below cannot obstruct a stream so as to flow back the water upon, or into, the land above; and where artificial water-courses, as ditches and drains have long been opened, the presumption would be that all persons benefitted by them, have the right to have them kept open.
Parliament is held to be omnipotent, and in the act of 1847, known as Lord Lincoln's Act, its power is well illustrated, as is also the determination of the British nation that no trifling impediments shall hinder the progress of the great work of draining lands for agriculture. The act, in effect, authorizes any person interested in draining his lands, to clear a passage through all obstructions, wherever it would be worth the expense of works and compensation.
Its general provisions may be found in the 15th Vol. of the Journal of the Royal Agricultural Society.
It is not the province of the author, to decide what may properly be done within the authority of different States, in aid of public or private drainage enterprises. The State Legislatures are not, like Parliament, omnipotent. They are limited by their written constitutions. Perhaps no better criterion of power, with respect to compelling contribution, by persons benefitted, to the cost of drainage, and with interfering with individual rights, for public or private advantage, can be found, than the exercise of power in the cases of fences and of flowage.
If we may lawfully compel a person to fence his land, to exclude the cattle of other persons, or, if he neglect to fence, subject him to their depredations, without indemnity, as is done in many States; or if we may compel him to contribute to the erection of division fences, of a given height, though he has no animal in the world to be shut in or out of his field, there would seem to be equal reason, in compelling him to dig half a division ditch for the benefit of himself and neighbor.
If, again, as we have already hinted, the Legislature may authorize a corporation to flow and inundate the land of an unwilling citizen, to raise a water-power for a cotton-mill, it must be a nice discrimination of powers, that prohibits the same Legislature from authorizing the entry into lands of a protesting mill-owner, or of an unknown or cross-grained proprietor, to open an outlet for a valuable, health-giving system of drainage.