on the admitted facts, she was guilty of by the person whose land is "overflowed or otherwise injured" by such dam, together with an annual compensation for future damages, or, in lieu therof, a gross sum, both to be computed by the jury, and for the bringing of a new complaint if dissatisfaction exists over the amount of such annual compensation, especially since the state court has held that no, easement or title is gained in or over the upper lands, and has recognized the right to injunctive relief if other remedies prove ineffectual. The charge of the court was the subject of review by the court of last resort of the state of New Jersey, and it was held by that court to be without error. Upon the record in this case there can, in our judgment, be no possible doubt that the petitioner has had a valid trial by a court having jurisdiction of the subject-matter and of the per- Argued March 1, 2, 1906. Decided March son of the accused, and that there was no loss of jurisdiction over either at any time during the trial. What effect was to be given by the court to the admission of counsel (above set forth) was a question of law for the court to decide, and the charge of the court did not oust it of jurisdiction to pro[140]ceed in the trial of the case. *This is to us so plain a proposition that it is unnecessary to enlarge upon it. Having no power to review on this writ any other question than that of the jurisdiction of the court in the trial and sentence pronounced upon the verdict of guilty, and concluding that there was the necessary jurisdiction the order of the Circuit Court refusing the writ of habeas corpus is affirmed. OTIS COMPANY, Plff. in Err., v. LUDLOW MANUFACTURING COMPANY (See S. C. Reporter's ed. 140-156.) 1. Constitutional law-due process NOTE. On the validity of statutes authorizing the flowage of lands-see note to Turner v. Nye. 14 L.R.A. 487. On the liability arising out of damming back the water of a stream-see note to Avery v. Vermont Electric Co. 59 L.R.A. 817. [No. 73.] 12, 1906. N ERROR to the Superior Court of the IN State of Massachusetts for the County of Suffolk, in that state, to review a judgment entered pursuant to an order of the Supreme Judicial Court of that state, directing the dismissal of a bill to restrain the flooding of the land of an upper riparian owner as the result of the erection of a dam under the au- fied by directing that the bill be dismissed See same case below, 186 Mass. 89, 104 The facts are stated in the opinion. Mr. Boyd B. Jones argued the cause, and, with Messrs. Charles L. Gardner and John J. Winn, filed a brief for plaintiff in error: A refusal or failure to consider a Federal question is equivalent to a decision against the Federal right involved therein. Erie R. Co. v. Purdy, 185 U. S. 148, 46 L. ed. 847, 22 Sup. Ct. Rep. 605; Des Moines Nav. & R. Co. v. Iowa Homestead Co. 123 U. S. 552, 31 L. ed. 202, 8 Sup. Ct. Rep. 217. If it appears from the record, by clear and necessary intendment, that the Federal question must have been directly involved, so that the state court could not have given judgment without deciding it, that will be sufficient to give jurisdiction. Powell v. Brunswick County, 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166. In the case at bar, as in Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173, the state court could not have reached a conclusion adverse to the plaintiff in error without holding either that the rights taken were not the property of the plaintiff, -see notes to Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman V. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304: People v. O'Brien, 2 L.R.A. 255 Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. As to what constitutes due process of law S. 865. or that it was not entitled to compensation, Com. v. Alger, McFarlin v. Essex Co. and therefor, which is equivalent to saying that Russell v. Russell, supra. it had not been deprived of its property without due process of law. A riparian owner has a private right that the waters of a non-navigable stream shall not be polluted by others so as to interfere with his reasonable use of the same for proper purposes, and for an infringement of that right he has a remedy at law and equity. In Massachusetts a river above the ebb and flow of the tide is a non-navigable river, and a riparian proprietor thereon owns to the thread of the stream, subject to the right of the public to pass in boats if the river be in fact boatable, and, like other Merrifield v. Lombard, Merrifield v. Worproperty, subject to a constitutional exer-cester, Dwight Printing Co. v. Boston, Washcise of the police powers of the state. burn & M. Mfg. Co. v. Worcester, and Sprague v. Dorr, supra. Ingraham v. Wilkinson, 4 Pick. 268, 16 Am. Dec. 342; Com. v. Chapin, 5 Pick. 199, 16 Am. Dec. 386; Rowe v. Granite Bridge Corp. 21 Pick. 344; Hopkins Academy v. Dickinson, 9 Cush. 544; McFarlin v. Essex Co. 10 Cusl. 304; Com. v. Vincent, 108 Mass. 441. A riparian proprietor on a non-navigable stream has the exclusive private right to the use of its waters as they flow through his land, and such right is parcel of the land, and as sacred as the right to the soil over which they flow. Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 1 L.R.A. 466, 18 N. E. 465, 154 Mass. 305, 13 L.R.A. 255, 28 N. E. 257; Fitch v. Stevens, 4 Met. 426; King v. King, 7 Mass. 496; Ingraham v. Wilkinson, and Com. v. Chapin, supra; Bardwell v. Ames, 22 Pick. 333; Williams v. Nelson, 23 Pick. 141, 34 Am. Dec. 45; Johnson v. Jordan, 2 Met. 234, 37 Am. Dec. 85; Pitts v. Lancaster Mills, 13 Met. 156; Knight v. Wilder, 2 Cush. 199, 48 Am. Dec. 660; Com. v. Alger, 7 Cush. 53; Bates v. Weymouth Iron Co. 8 Cush. 548; Elliot v. Fitchburg R. Co. 10 Cush. 191, 57 Am. Dec. 85; McFarlin v. Essex Co. supra; Hill v. Sayles, 12 Cush. 454; Russell v. Russell, 15 Gray, 159; Tourtellot v. Phelps, 4 Gray, 370; Pratt v. Lamson, 2 Allen, 275; Merrifield v. Lombard, 13 Allen, 16, 90 Am. Dec. 172; Drake v. Hamilton Woolen Co. 99 Mass. 574; Com. v. Vincent, supra; Merrifield v. Worcester, 110 Mass. 216, 14 Am. Rep. 592; Lund v. New Bedford, 121 Mass. 286; Dwight Printing Co. V. Boston, 122 Mass. 583; Clapp v. Herrick, 129 Mass. 292; Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 7 L.R.A. 613, 24 N. E. 774; Washburn & M. Mfg. Co. v. Worcester, 153 Mass. 494, 27 N. E. 664; Maynard v. Northampton, 157 Mass. 218, 31 N. E. 1062; Fales v. Easthampton, 162 Mass. 422, 38 N. E. 1129; Sprague v. Dorr, 185 Mass. 10, 69 N. E. 344. A riparian proprietor has a right to have the waters of a stream flow to him without an unreasonable diversion, and can maintain an action of tort for damages occasioned by a violation of such right, or a bill in equity to restrain it. Newhall v. Ireson, 8 Cush. 595, 54 Am. Dec. 790; Lund v. New Bedford, 121 Mass. 286; Dwight Printing Co. v. Boston, supra; Wamesit Power Co. v. Allen, 120 Mass. 352; Warren v. Spencer Water Co. 143 Mass. 9, 8 N. E. 606; Watuppa Reservoir Co. v. Fall River, 154 Mass. 305, 13 L.R.A. 255, 28 N. E. 257; Hollingsworth & V. Co. v. Foxborough Water Supply District, 165 Mass. 18C, 42 N. E. 574; Lexington Print Works v. Canton, 171 Mass. 414, 50 N. E. 931. A riparian proprietor has a private right to use the natural fall of the stream as it passes through his land for hydraulic purposes, and may maintain an action of tort for damages, or a bill in equity to enjoin the continuance of the obstruction to the flow, or may enter upon the premises of the wrongdoer and abate the nuisance. Williams v. Nelson, 23 Pick. 141, 34 Am. Dec. 45; Hill v. Sayles, 12 Met. 142, 4 Cush. 549, 12 Cush. 454; Tourtellot v. Phelps, and Pratt v. Lamson, supra; Smith v. Agawam Canal Co. 2 Allen, 355; Brighton v. Wheeler, 12 Allen, 89; Drake v. Hamilton Woolen Co. and Clapp v. Herrick, supra; Otis Co. v. Ludlow Mfg. Co. 186 Mass. 89, 104 Am. St. Rep. 563, 70 N. E. 1009; Ludlow Mfg. Co. v. Indian Orchard Co. 177 Mass. 61, 58 N. E. 181; Fales v. Easthampton, supra; M'Calmont v. Whitaker, 3 Rawle, 84, 23 Am. Dec. 102; Lancey v. Clifford, 54 Me. 487, 92 Am. Dec. 561; Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334; Parker v. Hotchkiss, 25 Conn. 321; Keeney & W. Mfg. Co. v. Union Mfg. Co. 39 Conn. 576; Heath v. Williams, 25 Me. 209, 43 Am. Dec. 265. The difference between the private property right of the riparian proprietor to use the natural fall of the stream for power, and his right as one of the public to use the stream for boating, is clearly shown inBlood v. Nashua & L. R. Corp. 2 Gray, 137, 61 Am. Dec. 444. See also Blackwell The right to fish in a non-navigable stream is the exclusive right of the riparian proprietor, from the enjoyment of which the public are excluded, and for an infringement of which the owner can maintain a common-law action of trespass. Ingraham v. Wilkinson, Com. v. Chapin, v. Old Colony R. Co. 122 Mass. 1. A distinction exists between the common-, braska, supra; Smyth v. Ames, 169 U. S. law rights of a riparian proprietor and his 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418. rights under the mill act. Gould v. Boston Duck Co. 13 Gray, 442; Smith v. Agawam Canal Co. 2 Allen, 355; Fuller v. Chicopee Mfg. Co. 16 Gray, 43. While a riparian owner is not entitled to compensation for damages or annoyance caused by the exercise of the sovereign or police powers of a state in a manner which does not violate the owner's private rights (Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336; Eldridge v. Trezevant, 160 U. S. 452, 40 L. ed. 490, 16 Sup. Ct. Rep. 345; Gibson v. United States, 166 U. S. 269, 41 L. ed. 996, 17 Sup. Ct. Rep. 578; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. 157; Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Bedford v. United States, 192 U. S. 217, 48 L. ed. 414, 24 Sup. Ct. Rep. 238), yet such owner cannot, even under such sovereign or police powers, be deprived of his rights without compensation. (Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349). These are the same rules this court applies to lands. Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Meyer v. Richmond, 172 Ų. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106. The capacity of unimproved or unoccupied property for improvement for agricultural, commercial, or hydraulic purposes is property under both the Federal and state law. Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 276, 35 L. ed. 1004, 1012, 12 Sup. Ct. Rep. 173; Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 407, 25 L. ed. 206, 208; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 260, 41 L. ed. 979, 993, 17 Sup. Ct. Rep. 581; Eaton v. Boston, C. & M. R. Co. 51 N. H. 504, 12 Am. Rep. 147; Wynehamer v. People, 13 N. Y. 378; Heard v. Middlesex Canal, 5 Met. 81; Boston & R. Mill Corp. v. Newman, 12 Pick. 467, 23 Am. Dec. 622; Maynard v. Northampton, 157 Mass. 218, 31 N. E. 1062; Fales v. Easthampton, 162 Mass. 422, 38 N. E. 1129; Baxter v. Rutland, 67 Vt. 607, 32 Atl. 488. Whether an interference with property rights is a taking of property within the due process of law clause of the 14th Amendment is a Federal, and not a local, question. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 241, 41 L. ed. 979, 986, 17 Sup. Ct. Rep. 581; Missouri P. R. Co. v. Ne Flowing the land of another under the authority of a mill act or other statute so as to deprive the owner of riparian rights, or so as to exclude him from the beneficial use of the land itself, or taking the right so to flow by such authority, is a taking of property within the due process of law clause of the 14th Amendment, entitling the owner to compensation. Pumpelly v. Green Bay & M. Canal Co. supra; Head v. Amoskeag Mfg. Co. 113 U. S. 9, 26, 28 L. ed. 889, 895, 5 Sup. Ct. Rep. 441; United States v. Lynah and Boston & R. Mill Corp. v. Newman, supra; Sinnickson v. Johnson, 17 N. J. L. 129, 34 Am. Dec. 184; Eaton v. Boston, C. & M. R. Co. supra; Arimond v. Green Bay & M. Canal Co. 31 Wis. 316; Lee v. Pembroke Iron Co. 57 Me. 481, 2 Am. Rep. 59; Ingram v. Maine Water Co. 98 Me. 566, 57 Atl. 893; Manigault v. Springs, 199 U. S. 473, ante, 274, 26 Sup. Ct. Rep. 127. An owner is deprived of his property when he is deprived of the right to use and enjoy it. Edwards v. Bruorton, 184 Mass. 529, 69 N. E. 328; Howe v. Weymouth, 148 Mass. 605, 20 N. E. 316; Re Wall Street, 17 Barb. 617; Portland v. Lee Sam, 7 Or. 397; Driver v. Western Union R. Co. 32 Wis. 569, 14 Am. Rep. 726; Forster v. Scott, 136 N. Y. 577, 18 L.R.A. 543, 32 N. E. 976; Whyte v. Kansas City, 22 Mo. App. 409; Isele v. Schwamb, 131 Mass. 337. A right taken is to be paid for without regard to the time when or the extent to which the taker may see fit to exercise it. Newton v. Perry, 163 Mass. 319, 39 N. E. 1032; Imbescheid v. Old Colony R. Co. 171 Mass. 209, 50 N. E. 609. The Massachusetts rule that the right to erect and maintain a dam to raise water for working a mill does not give to the mill owner any right to the land flowed, or take away any right from the landowner, because the latter may embank his land, and thus stop any flowage of it, or, if he chooses, he may collect of the mill owner damages in gross or annually for the flowage (Turner v. Nye, 154 Mass. 579. 14 L.R.A. 487, 28 N. E. 1048; Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39; Williams v. Nelson, 23 Pick. 141, 34 Am. Dec. 45), is opposed to the decisions of this court, violates the 14th Amendment, and is generally condemned. Lewis, Em. Dom. §§ 182, 183. It overlooks the fact that the embank. ment by the landowner to prevent the flooding by the mill owner produces, at the former's expense, the identical results to be avoided; and eminent judges of the su preme court of Massachusetts have refused | compensation to be made or secured to the Norwood v. Baker, 172 U. S. 269, 277, 43 L. ed. 443, 447, 19 Sup. Ct. Rep. 187. A provision that compensation shall be paid by an individual or business corporation, but affording merely a right of action to obtain it, does not satisfy the constitutional requirement. The mill act authorizes depriving a person of property without due process of law within the meaning of the 14th Amendment, because, as interpreted by the state Atty. Gen. v. Old Colony R. Co. 160 Mass. court, it authorizes the taking of the prop- 62, 22 L.R.A. 112, 35 N. E. 252; Ash v. erty of another without notice to the owner Cummings, 50 N. H. 591; Steinhart v. Suthereof, by acts of occupation, like the mak-perior Court, 137 Cal. 575, 59 L.R.A. 404, ing of the excavation in the present case, 92 Am. St. Rep. 183, 70 Pac. 629; Howe so unintelligible and ambiguous as utterly v. Norman, 13 R. I. 488; Powers v. Bears, to fail to indicate how much of the prop- 12 Wis. 213, 78 Am. Dec. 733; Lewis, Em. erty of the owner was or is to be taken, Dom. §§ 457, 458. or even that any of his property is to be injuriously affected. National Fibre Board Co. v. Lewiston & A. Electric Light Co. 95 Me. 318, 49 Atl. 1075; Glover v. Boston, 14 Gray, 282; Wilson v. Lynn, 119 Mass. 174; Wamesit Power Co. v. Allen, 120 Mass. 352; Kenison v. Arlington, supra; Woodbury v. Marblehead Water Co. 145 Mass. 509, 15 N. E. 282; Hollingsworth & V. Co. v. Foxborough Water Supply District, 165 Mass. 186, 42 N. E. 574; Hamor v. Bar Harbor Water Co. 78 Me. 127, 3 Atl. 40; Warren v. Spencer Water Co. 143 Mass. 9, 8 N. E. 606; Gloucester Water Supply Co. v. Gloucester, 179 Mass. 374, 60 N. E. 977. Adequate provision for making just compensation to the owner of property taken is required by the due process of law clause of the 14th Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 241, 41 L. ed. 979, 986, 17 Sup. Ct. Rep. 581; Williams v. Parker, 188 U. S. 491, 47 L. ed. 559, 23 Sup. Ct. Rep. 440; Mt. Hope Cemetery v. Boston, 158 Mass. 509, 35 Am. St. Rep. 515, 33 N. E. 695. If adequate provision for payment of compensation be made, possession of property A provision that compensation shall be paid by the state, county, or city of permanent solvency, supported, as it is, by public faith and credit, and not liable to go up and down like that of an individual, is security within the constitutional requirement. Williams v. Parker, 188 U. S. 491, 504, 47 L. ed. 559, 563, 23 Sup. Ct. Rep. 440; Smeaton v. Martin, 57 Wis. 364, 15 N. W. 403; Great Falls Mfg. Co. v. Garland, 25 Fed. 521; Cooley, Const. Lim. 7th ed. p. 816. It is not sufficient that the provisions for compensation are such that it will probably be paid. Connecticut River R. Co. v. Franklin County, 127 Mass. 50, 34 Am. Rep. 338. The compensation must be either ascertained and paid to him (the owner) before his property is thus appropriated, or an appropriate remedy must be provided and upon an adequate fund. Wend. 9, 31 Am. Dec. 313; Powers v. Bears, supra; Lewis, Em. Dom. § 459. Bloodgood v. Mohawk & H. R. R. Co. 18 The intimations of this court are fully in accord with the decisions that the respon or enjoyment of right taken may be had sibility of a private person or corporation is before such payment. Cherokee Nation v. Southern Kansas R. Co. 135 U. S. 641, 34 L. ed. 295, 10 Sup. But the owner is entitled to reasonable, certain, and adequate provisions for obtaining compensation before his occupancy is disturbed. Cherokee Nation v. Southern Kansas R. Co. 135 U. S. 641, 659, 34 L. ed. 295, 303, 10 Sup. Ct. Rep. 965. In other words, the due process of law prescribed by the 14th Amendment requires not an adequate fund. Williams v. Parker, 188 U. S. 491, 47 L. ed. 559, 22 Sup. Ct. Rep. 440; Sweet v. Rechel, 159 U. S. 380, 406, 40 L. ed. 188, 198, 16 Sup. Ct. Rep. 43. The Massachusetts mill act violates the 14th Amendment because it denies the owner of vacant land any compensation whatever for the loss-caused by flowing, under the authority of said act of that portion of its market value arising from its adaptability for mill purposes. Fuller v. Chicopee Mfg. Co. 16 Gray, 43; Mississippi & R. River Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; Fales v. Easthampton, 162 Mass. 422, 38 N. E. 1129; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 1 L.R.A. 466, 18 N. E. 465, 154 | Mass. 305, 13 L.R.A. 255, 28 N. E. 257. This mill act is also unconstitutional because, under its provision, one riparian owner is authorized, by an act of occupation of his land, thereby to acquire the right to flow the land of an upper proprietor, and, at a later date, to abandon such taking with out flowing and without liability to the upper proprietor for damages resulting from such taking, and because it does not give the owner of property taken a right to compensation simultaneous with the taking, but makes such right dependent upon the future volition of the taker. Thompson v. Moore, 2 Allen, 350; Eames v. New England Worsted Co. 11 Met. 570; Storm v. Manchaug Co. 13 Allen, 10; Palmer Co. v. Ferrill, 17 Pick. 58; Fuller v. Chicopce Mfg. Co. 16 Gray, 46; Re Wall Street, 17 Barb. 617; Portland v. Lee Sam, 7 Or. 397; Forster v. Scott, 136 N. Y. 577, 18 L. R.A. 543, 32 N. E. 976; Driver v. Western Union R. Co. 32 Wis. 569, 14 Am. Rep. 726; Edwards v. Bruorton, 184 Mass. 529, 69 N. E. 328; Whyte v. Kansas City, 22 Mo. App. 409; Isele v. Schwamb, 131 Mass. 337; Imbescheid v. Old Colony R. Co. 171 Mass. 209, 50 N. E. 609. This mill act also violates the due process of law clause of the 14th Amendment because it authorizes the flowing of the land of another, and his consequent exclusion from the use thereof for the time between the flowing and the filing and recording f the verdict, usually a period of at least two years, without first requiring the payment of, or any security by attachment or other wise for, the damages caused during that period. Wight v. Barnstable Sav. Bank, 123 Mass. 183; Hamilton v. Farrar, 131 Mass. 572; McNally v. Smith, 12 Allen, 455; Fuller v. Chicopee Mfg. Co. supra; Ash v. Cummings, 50 N. H. 591. The constitutional validity of a law is to be tested, not by what has been done under it, but by what may, by its authority, be done. Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Montana Co. v. St. Louis Min. & Mill Co. 152 U. S. 160, 170, 38 L. ed. 398, 400, 14 Sup. Ct. Rep. 506; Dexter v. Boston, 176 Mass. 247, 79 Am. St. Rep. 306, 57 N. E. 379: White v. Gove, 183 Mass. 333, 67 N. E. 359. The mill act also violates the due process of law clause of the 14th Amendment because it fails to require the payment in dvance of damages accruing after the date of such verdict, or to provide any certain nd definite fund out of which such damages shall be paid. Met. 603; Leland v. Hunt v. Whitney, Woorbury, 4 Cush. 245; Dean v. Colt, 99 Mass. 486. Cases to the effect that an interference with the rights of a landowner which forces him either to have his lands flowed by a lower owner or to incur the expense of building an embankment, and thereby flow it to the same extent, is not a taking, are opposed to the decisions of this court. Eminent judges of the supreme court of Massachusetts have refused to subscribe to this doctrine, and it is generally condemned by courts of other jurisdictions as well as by learned authors. Turner v. Nye, 154 Mass. 579, 14 L.R.A. 487, 28 N. E. 1048; Kenison v. Arlington, 144 Mass. 456, 11 N. E. 705; Isele v. Arlington Five Cents Sav. Bank, 135 Mass. 142; Isele v. Schwamb, supra; Chase v. Sutton Mfg. Co. 4 Cush. 152; Boston & R. Mill Corp. v. Newman, 12 Pick. 467, 23 Am. Dec. 622; Talbot v. Hudson, 16 Gray, 417; Avery v. Vermont Electric Co. 75 Vt. 235, 59 L.R.A. 817, 98 Am. St. Rep. 818, 54 Atl. 179; Lewis, Em. Dom. § 183. The state, in the exercise of the police powers, may prohibit, without compensation to the owner, any use of property injurious to the health, morals, or safety of the community; but it cannot, even in such case, take such property without adequate provision for compensation, and much less can it, without compensation, deprive an owner of the right to the beneficial enjoyment of his property for general purposes, in order that another person may use such property for a single purpose. Austin v. Tennessee, 179 U. S. 343, 45 L. ed. 224, 21 Sup. Ct. Rep. 132; Com. v. Alger, 7 Cush. 53; Sweet v. Rechel, 159 U. S. 380, 40 L. ed. 188, 16 Sup. Ct. Rep. 43; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Miller v. Horton, 152 Mass. 544, 10 L.R.A. 116, 23 Am. St. Ren. 850, 26 N. E. 100; Bent v. Emery, 173 Mass. 495, 53 N. E. 910; Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224. The Massachusetts mill act violates the 14th Amendment because it authorizes the taking of private property for private purposes. Cole v. LaGrange, 113 U. S. 1, 28 L. ed. 896, 5 Sup. Ct. Rep. 416; Fallbrook Irrig. District v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56; Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Cary Library v. Bliss, 151 Mass. 364, 7 L.R.A. 765, 25 N. E. 902. |