Otis Company v. Ludlow Manufacturing Company

• Decision Date: 12 March 1906
• Docket Number: No. 73,73
• Citation: 50 L.Ed. 696,201 U.S. 140,26 S.Ct. 353
• Parties: OTIS COMPANY, Plff. in Err. , v. LUDLOW MANUFACTURING COMPANY and Ludlow Cordage Company
• Court: U.S. Supreme Court

201 U.S. 140

26 S.Ct. 353

50 L.Ed. 696

OTIS COMPANY, Plff. in Err.,

v LUDLOW MANUFACTURING COMPANY and Ludlow Cordage Company.

No. 73.

Argued March 1, 2, 1906.

Decided March 12, 1906.

Messrs. Boyd B. Jones, Charles L. Gardner, and John J. Winn for plaintiff in error.

[Argument of Counsel from pages 141-147 intentionally omitted] Messrs. James B. Carroll, William H. Brooks, and Walter S. Robinson for defendant in error.

[Argument of Counsel from pages 147-150 intentionally omitted] 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 14th 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 Mass. 89, 104 Am. St. Rep. 563, 70 N. E. 1009. 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 pursuance of a long previous determination, an 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 water course, down to within about 2 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. Stat. chap. 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 14th Amendment. General objections to mill acts as taking property for private use or on other graunds have been disposed of by Head v. Amoskeag Mfg. Co. 113 U. S. 9, 28 L. ed. 889, 5 Sup. Ct. Rep. 441. See further, Clark v. Nash, 198 U. S. 361, 49 L. ed. 1085, 25 Sup. Ct. Rep. 676; Strickley v. Highland Boy Gold Min. Co. 200 U. S. 527, 50 L. ed. ——, 26 Sup. Ct. Rep. 301. Such acts have been in force in Massachusetts ever since an act of 1714, chap. 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 watchings and wardings one miller to each grist mill (act of 1693, chap. 3, § 13, 1 Prov. Laws, 130); and in the public duties which were expressed in the act of 1728, chap. 6, § 3, 1 Prov. Laws, 497. But, at all events, the liability of streams to this kind of appropriation and use has become so familiar a conception in New England, where water power plays as large a part as mines in Utah, that it would not be very extravagant to say that it enters as an incident into the nature of property in streams, as there understood.

However, the liability of upper land to be flowed is not a liability to be flowed without payment. The principal objection made to the law is that it makes no adequate provision for payment, if it is construed as it has been construed by the state court. There has been no substantial change in the form of this provision for the better part of a century. It reads: 'A person whose land is overflowed or otherwise injured by such dam, may obtain compensation therefor upon his complaint before the superior court for the county where the land or any part thereof lies; but no compensation shall be awarded for damage sustained more than three years before the institution of the complaint.' Pub. Stat. chap. 190, § 4. The jury is to take into consideration damage to other land as well as the damage to the land overflowed (§ 14). It is to assess the damages sustained within three years (§ 16), and to determine what sum, to be paid annually, would be reasonable compensation for the damages that may be occasioned thereafter, and also a sum in gross for all damages from the use of the dam in the manner fixed by it (§ 18), the jury having power to regulate the height of the dam (§ 17). The complainant is given an election to take the gross sum, in which case the owner of the dam loses all benefit of the act after three months until he pays. §§ 19, 20. Otherwise the complainant has an action for the annual compensation and a lien on the dam and lands used with it. §§ 21 et seq. And, finally, if dissatisfied with the amount of the annual compensation, he may bring a new complaint. § 30.

In considering whether these provisions are sufficient, it is important to know exactly what the upper owner loses by the dam. The state court lays it down that there is no taking under the right of eminent domain. 186 Mass. 95, 104 Am. St. Rep. 563, 70 N. E. 1009. We assume this to mean what often has been said with regard to the mill acts, that under them no easement or title of any kind is gained in or over the upper land, and that the water could be diked out, Storm v. Manchaug Co. 13 Allen, 10, 13; Lowell v. Boston, 111 Mass. 454, 466, 15 Am. Rep. 39; although the language has not been uniform, and it seems to have been held otherwise when the damages are paid in gross. Isele v. Arlington Five Cents Sav. Bank, 135 Mass. 142. Taking the law to be as stated by the court, it would follow that only the damage physically suffered is to be paid for. When a title is taken, for instance, to the waters of a stream, it is held that the whole value of the title must be paid, although a considerable use may be left in fact to the party aggrieved. Howe v. Weymouth, 148 Mass. 605, 20 N. E. 316; Imbescheid v. Old Colony R. Co. 171 Mass. 209, 50 N. E. 609. Flowage under the mill acts seems to be regarded as presenting the converse case. As no title is gained to have the water on the upper land, the dam owner pays only for the harm actually done from time to time. If this is so, somewhat less elaborate provisions might be justified than could be sustained when the title is lost. So far as security goes, looking to the reasonable probabilities in such cases, it would seem to be sufficient. We must...