BINNEY'S CASE.—2 BLAND. 125

navigation." The kinds of "private property," here referred
to, were the unimproved mill-sites, which had been previously
designated. This Act, by means of the work, which it gave
authority to construct, could interfere with a mill-site in only one
of two ways; either by preventing the water from reaching it, or
by occupying the whole, or a material portion of the very mill-
site itself. These two modes of interference could be effected
by only one kind of work; that is, by a canal; because, this sen-
tence must be taken in connection with its context; and then it-
must be read thus, at places through which it may be necessary to
conduct * canals, they, the canals, may interfere with
mill-sites, with which it is the intention of this Act not to 132
interfere, but for the purpose of navigation, unless with the con-
sent of the proprietors. Consequently, if the new navigable
canal interfered with a mill-site, either by diverting the water from
it, or by occupying its place, there were but two modes of redress
left to its owner. Either to accept an equivalent in money to be
agreed upon by the parties, or to be settled by a jury; or to have
the canal itself appropriated as a head-race to it; and thus save
it to himself, and for the benefit of the public. To give the pos-
sessors of mill-sites this latter choice, subject to certain restric-
tions, was the sole object of this section, and none other. And
accordingly, with this intention the Legislature proceeds to enact:
"That the water, or any part thereof, conveyed through any
canal or cut made by the said company, shall not be used for any
purpose but navigation, unless the consent of the proprietors of
the land through which the same shall be led be first had." The
general tenor of the Act had confined all the operations of the
company to the formation of a new line of navigation; and here,
that restriction in accordance with the whole spirit of the Act, is
distinctly expressed and repeated, as is evident, with no other
view than to ingraft upon it an exception. The water of the river,
it is declared, "shall not be used for any purpose but navigation;"
this is the general rule, then comes the exception, "unless the
consent of the proprietors of the land through which the same shall
be led be first had." This is the exception and condition upon
which the water of the river may be used for mill as well as for
navigation. "The consent of the proprietors must be first had."
If it can be had, then it appears that the corporation, as well as
the proprietors, may use the water for mills; or they may jointly
participate in making that use of it. But, if the proprietors
maliciously or capriciously withhold their consent, the corporation
must submit; for no power is given to it, in such case, to have the
property valued and condemned to any such use. The will or
consent of the proprietors is not, in this respect, subject to the
slightest control, they are left perfectly free to consent or not at
pleasure.