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)
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)
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)
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| Courtesy Wikimedia Commons “The constitutionality of the right has never been measured by the precise amount or degree of the public benefit to be conferred. Is there any good reason why water-mills should not be regarded as public improvements? Why the legislature should not favor their construction, especially in a new country, among a scattered population and where capital is limited?” -Judge Charles Larrabee, in Newcomb “[W]hatever necessity might have been supposed to exist for [mill dam] legislation in very early days, had wholly passed away in a very brief period … Indeed, the tendency of improvement has been in the direction of a steady diminution in the demand for water as a motive power for machinery … What seems conclusive … is the fact that the questions involved are [now] questions not of necessity, but of profit and relative convenience.” -Justice Thomas Cooley, in Ryerson Courtesy Wikimedia Commons “[I]f such laws be not valid, … the spirit of the
social compact, that individual interest must bow to public good, in many
instances, would be of little service to the community. In the construction and preservation of
canals, locks, dams, levees, and other improvements, … instant exertion is
necessary. If … nothing could be done
until a bargain could be made for materials, or their value ascertained by the
slow process of appraisement, the right of the public to promote the general
welfare by the use of private property, would be, indeed, but a crippled and
feeble prerogative.” -Justice __ Dewey, in Rubottom “Shall[the Northwest Ordinance’s guarantee of public access to rivers] … thus fetter forever the commercial energies of that region? [Small boat traffic is now] so dwarfed by the growth and progress of the country as not to stand in the way of the canal-boat, the steamboat and the railroad car … [the law] must be made practical by the necessities of our existence as a great commercial people.” -Justice Sidney Breese, in Illinois River Packet Co. |
EMPIRE OF LAWS - The Legal History of the 50 American States > 5. MIDWEST LEGAL HISTORY > 5.2. The Midwest, 1820-1865: The Antebellum Era > 5.2.1. The Midwest, 1820-1865: The Midwest and the Slavery Crisis > 5.2.2. The Midwest, 1820-1865: Antebellum Social Reforms >