• New York’s completion of the Erie Canal in 1825 prompted Midwestern states to undertake transportation projects of their own.  State and local governments subsidized canal and railroad construction; most suffered heavy losses in the depressions of 1837 and 1857. 

• Many Midwestern legislatures enacted “mill dam” laws, which overturned the common-law rule that water-mill operators could not use dams that flooded the lands of upstream neighbors even if such a dam was essential in order to operate the mill.  The new laws allowed flooding but required the mill owner to compensate owners of flooded lands.  Midwestern courts upheld the laws, but only reluctantly. 
  

• Midwestern courts and legislatures became increasingly “instrumentalist”:  they supported entrepreneurs who would develop resources and promote the industrial revolution. 

Legal instrumentalism:  Mill dam laws

Newcomb v. Smith – Wisconsin, 1849 (2 Pin.___); Miller v. Troost – Minnesota, 1869 (14 Minn. 365); Ryerson v. Brown – Michigan, 1877 (35 Mich. 333)

• “Mill dam laws” allowed mill owners to build Water mill dams provided power to run the mills but often flooded upstream lands; mill dam laws prevented landholders from stopping the mill owners as long as the owners paid for damage caused by the flooding.  Many Midwest states passed such laws, which were essential in order to enable local farmers to grind their grain, but from the earliest days the laws greatly troubled Midwestern judges.

• The earliest Midwestern debate took place in Newcomb when Wisconsin’s supreme court narrowly upheld its state’s law.  All the judges agreed that the mill dam laws deprived upstream landowners of property, and that mill owners could take the property only for a “public” purpose.  The majority interpreted public purposes broadly; the dissenters argued that even though mills served an important purpose, that did not make it a “public” purpose:  they were still private companies. 

• In 1860, Minnesota’s supreme court followed Wisconsin’s lead with little hesitation in Troost, but in 1877 Michigan’s Thomas Cooley – a nationally influential judge about whom more will be said later – applied the brakes to this trend.  Cooley commented that although water mills may truly have been indispensable to development in a frontier Midwest which had no other means of grinding grain, that time had passed:  water mills were now purely private concerns and were not entitled to take others’ property without their consent.  Other courts soon agreed with Cooley, and mill dam laws soon became obsolete. 

Legal instrumentalism:  Taking private property for canals and railroads

Willyard v. Hamilton – Ohio, 1836 (7 Ohio 2:112); Rubottom v. McClure- Indiana, 1838 (4 Blackford 505)

• When Midwestern states started to build canals and railroads, the question arose:  could railroad and canal companies force landowners to sell them land against their will?  Traditionally, eminent domain powers could only be used for public projects – but if the powers were not delegated to private companies, most construction projects would quickly die.  In Willyard and Rubottom, the Ohio and Indiana supreme courts held that canals and railroads were public projects even when built by private companies, and that they could build first and sort out payment disputes later. 

Legal instrumentalism:  Building and controlling bridges

Mills v. County of St. Clair – Illinois, 1845 (7 Ill. 197); Illinois River Packet Co. v. Peoria Bridge Association – Illinois, 1865 (38 Ill. 467)

• Before the industrial revolution, states usually granted exclusive charters to transportation companies:  only one railroad, canal, or bridge could operate in a particular area.  As America grew and more transport was needed, established franchise owners fought to prevent new charters from being issued.  
  

• In Mills, Illinois’ supreme court voted in favor of growth.  In  1819 the legislature had awarded Samuel Wiggins a ferry franchise across the Mississippi River between St. Louis and the Illinois shore; 20 years later, it authorized St. Clair County to operate a second ferry downstream of Wiggins’s ferry.   The court made clear that Wiggins had no exclusive ferry rights and that the old monopoly model was gone forever.

• In Peoria Bridge, the court faced another dilemma of the industrial age:  how to balance the interests of rail and water traffic when their paths collided?   When an Illinois river steamer collided with a bridge at Peoria, its owner sued the bridge proprietors, claiming the bridge interfered with the right of free river access guaranteed by the Northwest Ordinance.  Justice Sidney Breese explained that the Ordinance guaranteed only a general right of access to rivers.  Bridges should “interfere as little as possible” with river traffic, but if “sufficient way [was] left for the passage of boats in ordinary conditions of the wind and stages of water” with use of “proper care and caution,” then river users had no cause for complaint.   

• OTHER ASPECTS OF MIDWEST LEGAL HISTORY DURING THIS PERIOD
• OTHER PERIODS OF MIDWEST LEGAL HISTORY
• THE LEGAL HISTORY OF OTHER REGIONS