In The Founder's Constitution, an anthology of writings (letters, records of debates and early cases) relating to the Federal Constitution, Chancellor Kent’s opinion in Gardiner v The Trustees of the Village of Newburgh, et al. is included as Document 20 of the materials relating to the Fifth Amendment (Prohibition on the Taking of Private Property for Public Use without Just Compensation).
The Trustees of the Village of Newburgh were authorized by the Legislature to provide "pure and wholesome water" to the inhabitants of the village (L. 1809, ch 119). The Trustees identified a spring located on the Hasbrouck farm as the best source of water for the project. As provided by the statute, Mr. Hasbrouck received compensation both for his loss of the water and the damage caused by the installation of conduit pipes.
The spring on the Hasbrouck farm fed a stream that ran its whole course through Mr. Gardner's land until it emptied into the Hudson River. The stream provided irrigation for Mr. Gardner's crops and water for his cattle. It also powered his watermill and was used in his brick-making and distillery businesses. Because the statute authorizing the water system did not provide compensation to Mr. Gardner for his losses resulting from the diversion of the stream, he sought an injunction in the Court of Chancery to prevent the project. Gardiner was represented by attorneys Aaron Burr and John V.N. Yates.
Following counsels' submissions, Chancellor Kent concluded that Mr. Gardner's right to due process under New York's Constitution entitled him to just compensation for the loss of his property. The Chancellor stated: "It is a clear principle in law, that the owner of land is entitled to the use of a stream of water which has been accustomed, from time immemorial, to flow through it." While the Chancellor acknowledged the right of the Legislature to take land for necessary or useful public purposes, he granted Mr. Gardner an injunction pending the payment of compensation. To do otherwise, said the Chancellor, would deprive Mr. Gardner of his "undoubted and prescriptive right to the use and enjoyment of the stream."
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