answered by citing authorities for the existence of the right at common law. There are many things that a man might do at common law that the states may forbid. He might embezzle until a statute cut down his liberty. We cannot say that the public interests to which we have adverted, and others, are not sufficient to warrant the state in taking the whole business of banking under its control. On the contrary, we are of opinion that it may go on from regulation to prohibition except upon such conditions as it may prescribe. In short, when the Oklahoma legislature declares. by implication that free banking is a public danger, and that incorporation, inspection, and the above-described co-operation are necessary safeguards, this court certainly cannot say that it is wrong [citing cases].

Decree affirmed.

HEAD v. AMOSKEAG MFG. CO.

(Supreme Court of United States, 1885. 113 U. S. 9, 5 Sup. Ct. 441, 28 L. Ed. 889.)

[Error to the Supreme Court of New Hampshire. A general statute authorized the erection of mills and dams upon nonnavigable streams upon payment of damages to the owners of lands flowed by the dams. The Amoskeag Company filed a petition for the ascertainment of the damages suffered by Head from flowage from their dam, and Head alleged the invalidity of the statute under the fourteenth amendment. His objections were overruled and judgment was entered entitling the company to flow his land on payment of the amount of damage found.]

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Mr. Justice GRAY. * * [After referring to numerous mill acts in 29 states:] In most of those states, their validity has been assumed, without dispute; and they were never adjudged to be invalid anywhere until since 1870, and then in 3 states only, and for incompatibility with their respective Constitutions. Loughbridge v. Harris (1871) 42 Ga. 500; Tyler v. Beacher (1871) 44 Vt. 648, 8 Am. Rep. 398; Ryerson v. Brown (1877) 35 Mich. 333, 24 Am. Rep. 564. The earlier cases in Tennessee, Alabama and New York, containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerg. (Tenn.) 41, 24 Am. Dec. 546; Memphis Railroad v. Memphis, 4 Cold. (Tenn.) 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 Ala. 288; Hay v. Cohoes Co., 3 Barb. (N. Y.) 42, 47, and 2 N. Y. 159, 51 Am. Dec. 279. *

The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself at will, can be upheld as a taking, by delegation of the right of emi

nent domain, of private property for public use, in the constitutional sense, is so important and far reaching, that it does not become this court to express an opinion upon it, when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed, with a due regard to the interests of all, and to the public good, is within the constitutional power of the legislature.

When property, in which several persons have a common interest, cannot be fully and beneficially enjoyed in its existing condition, the law often provides a way in which they may compel one another to submit to measures necessary to secure its beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified.

In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition, upon which the court, if the land cannot be equally divided, will order owelty to be paid, or in many states, under statutes the constitutionality of which has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money, or else order the whole estate to be sold. King v. Reed, 11 Gray (Mass.) 490; Bentley v. Long Dock Co., 14 N. J. Eq. 480; s. c. on appeal, nom. Manners v. Bentley, 15 N. J. Eq. 501; Mead v. Mitchell, 17 N. Y. 210, 72 Am. Dec. 455; Richardson v. Monson, 23 Conn. 94. Water rights held in common, incapable of partition at law, may be the subject of partition in equity, either by apportioning the time and extent of use, or by a sale of the right and a division of the proceeds. Smith v. Smith, 10 Paige (N. Y.) 470; De Witt v. Harvey, 4 Gray (Mass.) 486; McGillivray v. Evans, 27 Cal. 92.

At the common law, as Lord Coke tells us: "If two tenants in common, or joint tenants, be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda; and the writ saith, ad reparationem et sustentationem ejusdem domus teneantur; whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men." Co. Lit. 200b; 4 Kent Com. 370. In the same spirit, the statutes of Massachusetts, for a hundred and seventy-five years, have provided that any tenant in common of a mill in need of repair may notify a general meeting of all the owners for consultation, and that, if any one refuses to attend, or to agree with the majority, or to pay his share, the majority may cause the repairs to be made, and recover his share of the expenses out of the mill or its profits or earnings. Mass. Prov. Stat. 1709,

ch. 3, 1 Prov. Laws (State ed.) 641, and Anc. Chart. 388; Stat. 1795, ch. 74, §§ 5-7; Rev. Stat. 1836, ch. 116, §§ 44-58; Gen. Stat. 1860, ch. 149, §§ 53-64; Pub. Stat. 1882, ch. 190, §§ 59-70. And the statutes of New Hampshire, for more than eighty years, have made provision for compelling the repair of mills in such cases. Roberts v. Peavey, 7 Foster (27 N. H.) 477, 493.

The statutes which have long existed in many states authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole tract, by cutting ditches or otherwise, and to assess and levy the amount of the expense upon all the proprietors in proportion to the benefits received, have been often upheld, independently of any effect upon the public health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Burt, 22 Pick. (Mass.) 422; Wright v. Boston, 9 Cush. (Mass.) 233, 241; Sherman v. Tobey, 3 Allen (Mass.) 7; Lowell v. Boston, 111 Mass. 454, 469, 15 Am. Rep. 39; French v. Kirkland, 1 Paige (N. Y.) 117; People v. Brooklyn, 4 N. Y. 419, 438, 55 Am. Dec. 266; Coster v. Tide Water Co., 18 N. J. Eq. 54, 68, 518, 531; O'Reiley v. Kankakee Valley Drainage Co., 32 Ind. 169.

By the maritime law, based, as Lord Tenterden observed, on the consideration that the actual employment of ships is "a matter, not merely of private advantage to the owners, but of public benefit to the state," and recognized in the decisions and the rules of this court, courts of admiralty, when the part-owners of a ship cannot agree upon her employment, authorize the majority to send her to sea, on giving security to the dissenting minority, to bring back and restore the ship, or, if she be lost, to pay them the value of their shares; and in such case the minority can neither recover part of the profits of the voyage nor compensation for the use of the ship. Abbott on Shipping, pt. 1, ch. 3, §§ 2, 3; The Steamboat Orleans, 11 Pet. 175, 183, 9 L. Ed. 677; Rule 20 in Admiralty, 3 How. vii.; The Marengo, 1 Low. 52, Fed. Cas. No. 9,065. If the part-owners are equally divided in opinion upon the manner of employing the ship, then, according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Am. Jur. 485; s. c. 3 Wall. Jr. 395, Fed, Cas. No. 12,670. See, also, Story on Partnership, § 439; The Nelly Schneider, 3 P. D. 152.

But none of the cases, thus put by way of illustration, so strongly call for the interposition of the law as the case before us. The right to the use of running water is publici juris, and common to all the proprietors of the bed and banks of the stream from its source to its outlet. Each has a right to the reasonable use of the water as it flows past his land, not interfering with a like reason

able use by those above or below him. One reasonable use of the water is the use of the power, inherent in the fall of the stream and the force of the current, to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus dammed up by one riparian proprietor spread over the lands of others, they could at common law bring successive actions against him for the injury so done them, or even have the dam abated. Before the mill acts, therefore, it was often impossible for a riparian proprietor to use the water power at all, without the consent of those above him. The purpose of these statutes is to enable any riparian proprietor to erect a mill and use the water power of the stream, provided he does not interfere with an earlier exercise by another of a like right or with any right of the public; and to substitute, for the common-law remedies of repeated actions for damages and prostration of the dam, a new form of remedy, by which any one whose land is flowed can have assessed, once for all, either in a gross sum or by way of annual damages, adequate compensation for the injury.

This view of the principle upon which general mill acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the Supreme Judicial Court of Massachusetts. In delivering the opinion of the court in a case decided in 1832, he said: "The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the provincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil; and in ascertaining their extent it will be useful to inquire into the principle upon which they are founded. We think they will be found to rest for their justification, partly upon the interest which the community at large has in the use and employment of mills, and partly upon the nature of the property, which is often so situated that it could not be beneficially used without the aid of this power. A stream of water often runs through the lands of several proprietors. One may have a sufficient mill-site on his own land, with ample space on his own land for a mill-pond or reservoir, but yet, from the operation of the well-known physical law that fluids will seek and find a level, he cannot use his own property without flowing the water back more or less on the lands of some other proprietor. We think the power given by statute was intended to apply to such cases, and that the legislature meant to provide that, as the public interest in such case coincides with that of the mill-owner, and as the mill-owner and the owner of lands to be flowed cannot both enjoy their full rights, without some interference, the latter shall yield to the former, so far that the former may keep up his mill and head of water, notwithstanding the damage done to the latter, upon payment of an equitable compensation for the real damage sus

tained, to be ascertained in the mode provided by the statute." "From this view of the object and purpose of the statute, we think it quite manifest that it was designed to provide for the most useful and beneficial occupation and enjoyment of natural streams and watercourses, where the absolute right of each proprietor to use his own land and water privileges, at his own pleasure, cannot be fully enjoyed, and one must of necessity, in some degree, yield to the other." Fiske v. Framingham Manufacturing Co., 12 Pick. (Mass.) 68, 70–72. * *

*

Upon principle and authority, therefore, independently of any weight due to the opinions of the courts of New Hampshire and other states, maintaining the validity of general mill acts as taking private property for public use, in the strict constitutional meaning of that phrase, the statute under which the Amoskeag Manufacturing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power of the legislature, having regard to the public good, in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water power of running streams, which without some such regulation could not be beneficially used. The statute does not authorize new mills to be erected to the detriment of existing mills and mill privileges. And by providing for an assessment of full compensation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557. *

Judgment affirmed.

COMMONWEALTH v. STRAUSS.

(Supreme Judicial Court of Massachusetts, 1906. 191 Mass. 545, 78 N. E. 136, 11 L. R. A. [N. S.] 968, 6 Ann. Cas. 842.)

[Exceptions to indictment. A Massachusetts statute criminally forbade any person doing business in the state to make it a condition of the sale of goods that the purchaser should not deal in the goods of any other person; with certain exceptions regarding exclusive agents and selling territory. Strauss, agent for the Continental Tobacco Company, sold plug tobacco on condition that if the purchaser dealt in the goods of no other tobacco manufacturer a rebate of six per cent. would be returned. The prices asked for tobacco made the receipt of this rebate practically necessary in order to secure a profit to the retailer. Defendant, being convicted under this statute, alleged exceptions.]

KNOWLTON, C. J. * * The rights relied upon under the fourteenth amendment to the Constitution of the United States, and under the Declaration of Rights in the Constitution of Massachusetts, are substantially the same, namely the right of every per