132 BINNEY'S CASE.

nals, they, the canals, may interfere with mill-sites, with which it
is the intention of this act not to interfere, but for the purpose of
navigation, unless with the consent of the proprietors. Conse-
quently, 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 possessors of mill-sites this latter
choice, subject to certain restrictions, 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 pur-
pose but navigation, unless the consent of the proprietors of the
land through which the same shall be led be first had.' The gene-
ral tenor of the act had confined all the operations of the company
to the formation of a new line of navigation; and here, that re-
striction, in accordance with the whole spirit of the act, is dis-
tinctly 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 mills 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 proprie-
tors, 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 con-
trol, they are left perfectly free to consent or not at pleasure.

'And the said president and directors, or a majority of them, are
hereby empowered and directed, if it can be conveniently done, to
answer both the purposes of navigation and water-works afore-
said, to enter into reasonable agreements with the proprietors of
such situation concerning the just proportion of the expenses of