201 U. S. Argument for Defendants in Error. Present conditions may be considered in determining the constitutionality of an act which under former or other conditions might have been valid. Clark v. Nash, 198 U. S. 361; Stowell v. Flagg, 11 Massachusetts, 364. This court is unaffected by considerations of contemporaneous construction and acquiescence which have led different state courts to diverse conclusions. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239; Scott v. Toledo, 36 Fed. Rep. 385, 395, 396. Mr. James B. Carroll and Mr. William H. Brooks, with whom Mr. Walter S. Robinson was on the brief, for defendants in error: There was no Federal question before the court. The real controversy related to the question of whether the owner who first commenced or who first finished his dam was entitled to relief. It was a question of construction of the act and not its validity. Comm. Bank of Cincinnati v. Buckingham, 5 How. 317, 343; Walker v. Sauvinet, 92 U. S. 90; Central Land Co. v. Laidley, 159 U. S. 103; Knox v. Exchange Bank, 12 Wall. 379. If a Federal question was involved the plaintiff waived it. By proceeding under the particular statute it acquiesced in its validity. Hale v. Lewis, 181 U. S. 473; Electric Co. v. Dow, 166 U.S. 489; Eustis v. Bolles, 150 U. S. 361; Pitkin v. Springfield, 112 Massachusetts, 509; Baker v. Braman, 6 Hill, 47; Dewhurst v. Allegheny, 95 Pa. St. 437. A party who seeks in the state court to litigate rights and is given an opportunity to do so, cannot raise a Federal question simply because he is unsuccessful. Remington Paper Co. v. Watson, 173 U. S. 443; Cooley on Const. Lim., 6th ed., 214; Bigelow on Estoppel, 689; Wright v. Wilkin, 4 D. G. & J. 141. The plaintiff is not entitled to relief because guilty of laches. Whitney v. Union Railroad Co., 11 Gray, 359. The decision of the state court was not in fact or necessarily based on any Federal question, and if the state court could Argument for Defendants in Error. 201 U. S. have rendered judgment upon grounds not involving a Federal question this court will not take jurisdiction. Klinger v. Missouri, 13 Wall. 257; Jenkins v. Loewenthal, 110 U. S. 222; Chouteau v. Gibson, 111 U. S. 200; Hammond v. Johnston, 142 U. S. 73; Eustis v. Bolles, 150 U. S. 361. The Mill Acts of Massachusetts, Pub. Stats., c. 190, are in accord with the constitution of that Commonwealth, and have been assumed to be so by the highest court of the State for more than one hundred years without dispute. In cases where the question has been directly raised, the validity of the statutes known as the "Mill Acts" has been sustained and they have been declared constitutional. Murdock v. Stickney, 8 Cush. 113; Hazen v. Essex Company, 12 Cush. 475; Lowell v. Boston, 111 Massachusetts, 454; Turner v. Nye, 154 Massachusetts, 579. This being the construction of these statutes by the highest court of the State, such construction is conclusive on the Federal Supreme Court on a writ of error to the state court. Fallbrook Irrigation District v. Bradley, 164 U. S. 112; Noble v. Mitchell, 164 U. S. 367; Carstairs v. Cochran, 193 U. S. 11; Walker v. Sauvinet, 92 U. S. 90; Merchants' & Mfrs. Natl. Bank v. Pennsylvania, 167 U. S. 461; Rasmussen v. Idaho, 181 U. S. 198, 200; Morley v. Lake Shore & Michigan Southern R. R., 146 U. S. 162. The Mill Acts of Massachusetts are not in violation of the Fourteenth Amendment of the Constitution of the United States. Head v. Amoskeag Mfg. Co., 113 U. S. 9. They have been in existence with little change since the statute of 12 Anne, c. 8. They were enacted to enhance the wealth of the Commonwealth, for the public welfare, for the promotion of and increase of industries and manufactures, and incidentally for the discouragement of controversies between riparian proprietors and for the regulation of the rights of property owners upon streams adaptable for power purposes. The enactment was a legitimate exercise of legislative authority within the scope of its power to provide for the welfare 201 U.S. Argument for Defendants in Error. and prosperity of the people of the State. Head v. Amoskeag Mfg. Co., 113 U. S. 9, 26; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; Wurts v. Hoagland, 114 U. S. 606; Barbier v. Connolly, 113 U. S. 27; Manigault v. Springs, 199 U. S. 473. No title to the land flowed is acquired by a lower proprietor under this Mill Act, and no land is taken thereby. The landowner cannot obtain damages for an alleged restriction on the use of his land by the contemplated raising of the water thereon or thereover, until the flowage caused by the raising of the waters of the stream by the dam of the lower proprietor actually takes place. It is also true that before the water is raised by the dam of the lower proprietor, the upper proprietor may dike, embank or dig canals on his own land. See Williams v. Nelson, 23 Pick. 141; Murdock v. Stickney, 8 Cush. 113; Storm v. Manchaug Co., 13 Allen, 10; Manigault v. Springs, 199 U. S. 473; Wurts v. Hoagland, 114 U. S. 606; Barbier v. Connolly, 113 U. S. 27. Plaintiff waived any notice of defendant's acts to which it might have been entitled. Allen v. Charlestown, 111 Massachusetts, 123, 124; Holt v. City Council of Somerville, 127 Massachusetts, 408, 410; Gately v. Old Colony R. R. Co., 171 Massachusetts, 494; Appleton v. Newton, 178 Massachusetts, 277, 281; Lancy v. Boston, 185 Massachusetts, 219, 221; Sweet v. Rechel, 159 U. S. 380. If an upper proprietor has notice at any stage of the proceedings his rights are fully protected. Spencer v. Merchant, 125 U. S. 345; C., B. & Q. R. R. Co. v. Nebraska, 170 U. S. 57; Cincinnati, N. O. & T. P. R. R. Co. v. Kentucky, 115 U. S. 321. Having actually received notice of the acts of appropriation of the defendant the plaintiff is not entitled to relief, by reason of the fact that the Mill Act may not in terms contain a provision requiring notice. Tyler v. Judges of Registration, 179 U. S. 405; C., B. & Q. R. R. Co. v. Nebraska, 170 U. S. 57; Reetz v. Michigan, 188 U. S. 505; Detroit &c. Railway v. Os born, 189 U. S. 383. Notice is a local question. Castillo v. McConnico, 168 U. S. 674. The Mill Act accords constitutional compensation for damages sustained. Otis Co. v. Ludlow Mfg. Co., 186 Massachusetts, 89; Head v. Amoskeag Mfg. Co., 113 U. S. 9; Morley v. Lake Shore R. R., 146 U S. 162; Manigault v. Springs, 199 U. S. 473. The principles or elements of damages cannot be considered here. The only question for consideration here is whether the plaintiff has been deprived of due process of law. The plaintiff has had the process of law due according to the law of the land and therefore "due process of law." Marchant v. Pennsylvania R. Co., 153 U. S. 380, 385; Davidson v. New Orleans, 96 U. S. 97; Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 157, 158; Walker v. Sauvinet, 92 U. S. 90; Kennard v. Morgan, 92 U. S. 480. A decision that as between riparian proprietors priority of occupation gives the better right is not contrary to the Fourteenth Amendment of the Constitution of the United States. The question of fact that was decided in favor of the defendant cannot be reviewed by this court. Backus v. Ft. Street Union Depot Co., 169 U. S. 557, 566. MR. JUSTICE HOLMES delivered the opinion of the court. This is a bill in equity to restrain the defendants in error from flooding the plaintiff's land by means of a dam erected under the Massachusetts Mill Act. The injunction is asked on alternative grounds-either that the Mill Act does not authorize the dam, or that, if it does, then it is contrary to the Fourteenth Amendment of the Constitution of the United States. The case was tried in the Superior Court and reported to the Supreme Judicial Court, which held that the statute authorized the dam and was valid, and ordered the bill be dismissed. 186 Massachusetts, 89. A decree was entered in accordance with the rescript and the case then was brought here. The claim under the Constitution was distinctly set up in the bill, and was insisted on at every stage. The court could not have decided as it did without overruling that claim, so that the jurisdiction of this court is clear, although it was denied. The dam in question is built across the Chicopee River, a non-navigable stream, at Red Bridge. It was begun, in pursurance of a long previous determination, on August 3, 1899, and was completed within a reasonable time. The plaintiff owned a mill and dam, more than two miles above, and land below its dam on the two sides of the watercourse, down to within about two miles from the principal defendant's dam. On April 4, 1900, the plaintiff determined to build a dam near its lower boundary, and began the work of construction on August 11 of the same year. This dam was completed before, although it was begun after, the defendants', and will be rendered nearly or wholly useless by the back flow from the defendants' structure. The plaintiff's original dam and mill will not be interfered with. The Supreme Judicial Court decided that under the statute then in force, Pub. Stats., c. 190, § 2, the principal defendant, herein called the defendant, acquired the prior right, and that the statute was constitutional. It postponed the consideration of the plaintiff's rights in reference to damages, but decided that the provision for compensation was adequate to satisfy whatever rights the plaintiff might have. The only question which it is necessary for us to consider is whether the act as construed violates the Fourteenth Amendment.-General objections to Mill Acts as taking property for private use or on other grounds have been disposed of by Head v. Amoskeag Manufacturing Co., 113 U. S. 9. See further Clark v. Nash, 198 U. S. 361; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527. Such acts have been in force in Massachusetts ever since an act of 1714, c. 15. 1 Prov. Laws, 729. The practice sanctioned by them would seem from the recitals of that act to have been still older. It may have begun with grist mills and may have had its justification in the public needs which exempted from military watch |