Watuppa Reservoir Co. v. City of Fall River

• Decision Date: 29 October 1888
• Citation: 147 Mass. 548,18 N.E. 465
• Parties: WATUPPA RESERVOIR CO. v. CITY OF FALL RIVER. TROY COTTON & WOOLEN MANUFACTORY TROY COTTON & WOOLEN MANUFACTORY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 548

18 N.E. 465

WATUPPA RESERVOIR CO.

TROY COTTON & WOOLEN MANUFACTORY v. CITY OF FALL RIVER.

TROY COTTON & WOOLEN MANUFACTORY v. SAME.

Supreme Judicial Court of Massachusetts, Bristol.

October 29, 1888

COUNSEL J.F. Jackson, for defendant.

Acts 1886, c. 353, is an amendment of Acts 1871, c. 133, the original water act of Fall River; and it should be construed accordingly, as an amendatory act. Opinion of Justices, 13 N.E. 15, (Sept. 22, 1887.) The act of 1871 contained provisions which made the payment of certain damages a condition of the grant. Reservoir Co. v. Fall River, 134 Mass. 268; Trowbridge v. Brookline, 144 Mass 139, 10 N.E. 796. If private rights and property are taken by the drawing of this water, ample means are given the owners for presenting their claims. St.1887, cc. 114, 152, 416. Any legal claims to damages, on account of injury to private property by the taking of water complained of, should be presented in the manner provided in the act of 1871.

Suppose however, the statute of 1886, c. 353, to stand by itself, and this to be a proper proceeding to obtain a judicial construction of it, the question of constitutionality can be considered only on proof that some legal rights belonging to plaintiffs are infringed upon. Haskell v. New Bedford, 108 Mass. 208. The nature of the rights of the state in great ponds: Mass. Colony Ordinance, 1641-47. By the colony ordinance great ponds were set apart and devoted to the public use. West Roxbury v. Stoddard, 7 Allen, 158; Potter v. Howe, 141 Mass. 357, 6 N.E. 233; Fay v. Aqueduct Co., 111 Mass. 27. The title of these waters, and the land under them, is in the state; the use in the public. The state holds as trustee, as it holds title in navigable or tide waters. Paine v. Woods, 108 Mass. 169; Hittinger v. Eames, 121 Mass. 539; Gage v. Steinkrauss, 131 Mass. 222; Attorney General v. Aqueduct Corp., 133 Mass. 361; Com. v Tiffany, 119 Mass. 303. This colony ordinance has been applied, and its principles extended, throughout the commonwealth. Com. v. Alger, 7 Cush. 53; Weston v. Sampson, 8 Cush. 347; Paine v. Woods, 108 Mass. 169. The legislature has the full control of, and power of regulation over, all public rights. It may abridge one in favor of another, or it may wholly destroy one in favor of another, according to what it deems to be most for the public good. Com. v. Essex Co., 13 Gray, 239; Howes v Grush, 131 Mass. 208. See Railroad Co. v. Railroad Co., 3 Cush. 58; Davidson v. Railroad Co., Id. 91; Brightman v. Fairhaven, 7 Gray, 271; Gilman v. Philadelphia, 3 Wall. 713; Miller v. New York, 109 U.S. 393, 3 S.Ct. 228; Transportation Co. v. Chicago, 99 U.S. 635; Lyon v. Fishmongers' Co., L.R. 10 Ch. 688; Kearns v. Cordwainers' Co., 6 C.B.(N.S.) 406; Woodman v. Pitman, 10 Atl.Rep. 321; Huse v. Glover, 119 U.S. 549, 7 S.Ct. 313; Water-Power Co. v. River Co., 52 Conn. 570. The above cases mark the distinction between consequential injury to private property, resulting from the exercise of legislative control of public rights, and a direct invasion of private property which would constitute a taking. The following cases give instances of the latter: Mill Corp. v. Newman, 12 Pick. 467; Pumpelly v. Green Bay Co., 13 Wall. 166; Eaton v. Railroad Co., 51 N.H. 504; Brigham v. Edmands, 7 Gray, 359. Whatever limitations there may be upon the power of the legislature to grant away the public rights of which it is trustee, its power of regulation over them is unlimited. Com. v. Vincent, 108 Mass. 442; Com. v. Weatherhead, 110 Mass. 178; Cole v. Eastham, 133 Mass. 65; Barre v. Flemings, 1 S.E.Rep. 731. Riparian rights upon a stream are confined to running waters,--to such as make up a water-course. Gould, Waters, § 79; Trustees v. Schroll, 12 N.E. 243; Appraisers v. People, 17 Wend. 571; Broadbent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taylor, Id. 380. The common law is now changed by the ordinance and legislative enactments, and the riparian owner holds subject to the public rights. Cole v. Eastham, 133 Mass. 65. The ordinance of 1641-47 has always been construed broadly and liberally. Though naming but a few, it is held to devote great ponds to all public uses. Smith v. Rochester, 92 N.Y. 463; West Roxbury v. Stoddard, 7 Allen, 168; People v. Appraisers, 33 N.Y. 461. Taking water through the pipes and conduits does not differ, as far as legal consequences are concerned, from taking it by buckets or by hand. Weston v. Alden, 8 Mass. 136; Roberts v. Richards, 50 Law J.Ch. 297; Wadsworth v. Tillotson, 15 Conn. 372; Mayor v. Commissioners, 7 Pa.St. 363; Chasemore v. Richards, 7 H.L.Cas. 350. Prescriptive rights: The report shows no rights in these plaintiffs gained against the public by prescription. Hittinger v. Eames, 121 Mass. 540; Brastow v. Ice Co., 77 Me. 101; Manufacturing Co. v. Burgin, 114 Mass. 340.

Rights under the mill acts: Under the later decisions, these acts do not rest on the principle of eminent domain, but on the right to regulate the use of property held in common. No property is taken by the exercise of the powers granted; no easement is created. Murdock v. Stickney, 8 Cush. 114; Bates v. Iron Co., Id. 548; Lowell v. Boston, 111 Mass. 466; Head v. Manufacturing Co., 113 U.S. 21, 5 S.Ct. 441. No power is ever given, under a general authority, to interfere with property already devoted to public use. Pub.St. c. 190; Springfield v. Railroad Co., 4 Cush. 72; Andover v. Sutton, 12 Metc. 187; Potter v. Howe, 141 Mass. 357, 6 N.E. 233; Navigation Co. v. Coons, 6 Watts & S. 115; Railroad Co. v. Young, 33 Pa.St. 180; Stoughton v. Baker, 4 Mass. 522; Commissioners v. Water-Power Co., 104 Mass. 446. "The use of the water for the manufactures is the extraordinary use of the water, and is inferior to the right to its ordinary use." Gould, Waters, 361, 362. This principle is recognized in New York. Arnold v. Foot, 12 Wend. 333; Prentice v. Geiger, 74 N.Y. 344; Philadelphia v. Collins, 68 Pa.St. 123; Shook v. Colohan, 12 Or. 244, 6 P. 503; Wadsworth v. Tillotson, 15 Conn. 367; Ferrea v. Knipe, 28 Cal. 344; Attorney General v. Railway Co., 23 Law T. 344; Roberts v. Richards, 50 Law J.Ch. 297; Ormerod v. Mill Co., 11 Q.B.Div. 170; Anderson v. Railway Co., 5 S.W.Rep. 50; Railroad Co. v. Miller, 112 Pa.St. 34, 3 Atl.Rep. 780; Miner v. Gilmour, 12 Moore, P.C. 131.

This plaintiff relies upon a grant from the legislature. "In this country, as in England, a grant from the sovereign power is to be construed strictly against the grantee." Attorney General v. Aqueduct Corp., 133 Mass. 361; Commissioners v. Water-Power Co., 104 Mass. 446; Stone v. Trust Co., 116 U.S. 307, 6 S.Ct. 334, 388, 1191. The act of 1826 was made subject, in terms, to the general manufacturing act of 1808, which contained a reservation in the legislature of the rights to amend, alter, or repeal. Beer Co. v. Massachusetts, 97 U.S. 25; Parker v. Railroad Co., 109 Mass. 506; Sinking Fund Cases, 99 U.S. 700; Newton v. Commissioners, 100 U.S. 548; East Hartford v. Bridge Co., 10 How. 511; Fertilizing Co. v. Hyde Park, 97 U.S. 659; Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 S.Ct. 652; Stone v. Mississippi, 101 U.S. 816; Com. v. Intoxicating Liquors, 115 Mass. 153. "By the colony ordinance of 1641-47, these great ponds are declared public, and shall not be appropriated to any particular person or persons." Gage v. Steinkrauss, 131 Mass. 222; Woodruff v. Mining Co., 18 F. 785. Wherever mill-rights are exercised by legislative grant in waters the title of which is in the state, those grants have always been held as given subject to the public rights, even where there has been no reservation of the right to amend or repeal in the charter. Mayor v. Commissioners, 7 Pa.St. 348; Canal Co. v. Wright, 9 Watts & S. 9; Appraisers v. People, 17 Wend. 629. The same is true of grants in private water-courses as against the public rights therein. Stoughton v. Baker, 4 Mass. 522; Commissioners v. Water-Power Co., 104 Mass. 446. See Packet Co. v. Keokuk, 95 U.S. 80; In re Groff, 21 Neb. 647, 33 N.W. 426.

Morton & Jennings, for plaintiff.

The colonial governments originally established here owned the land described in their patents, which included that embraced in the limits of this state. Com. v. Alger, 7 Cush. 53. As a proprietor, the ownership of the government did not differ from that of any other proprietor. Vansickle v. Haines, 7 Nev. 249; West Roxbury v. Stoddard, 7 Allen, 158, 169; Acts 1810, c. 92; Chapman v. Edmands, 3 Allen, 513n; Green v. Putnam, 8 Cush. 21. The purpose of the ordinance of 1647 "was to declare a great principle of public right, to abolish the forest laws, the game laws, and the laws designed to secure several and exclusive sections, and to make their use free." Com v. Alger, supra; Boston v. Richardson, 13 Allen, 156; Com. v. Roxbury, 9 Gray, 477. The defendant's case rests on the fact that the state has the title, and it has acquired title from the state. The leading case on great ponds is West Roxbury v. Stoddard, 7 Allen, 158. There are many cases in this state following West Roxbury v. Stoddard, but not one supports the position taken by the defendant. Attorney General v. Aqueduct Corp., 133 Mass. 361; Gage v. Steinkrauss, 131 Mass. 222; Rowell v. Doyle, Id. 476; Hittinger v. Eames, 121 Mass. 539; Fay v. Aqueduct Co., 111 Mass. 27; Paine v. Woods, 108 Mass. 169; Berry v. Raddin, 11 Allen, 577 No case has held that the waters of a great pond may be diverted by the state or anyone, to the injury of a riparian proprietor on the outlet stream. Cummings v. Barrett, 10 Cush. 188; Potter v. Howe, 141 Mass. 357, 6 N.E. 233; Reservoir Co. v. Fall River, 134 Mass. 267. The uniform usage of the commonwealth is opposed to defendant's claim. Varick v. Smith, 9 Paige, 547.

These ponds are...