Attorney Gen. v. Jamaica Pond Aqueduct Corp.
| Decision Date | 16 November 1881 |
| Citation | 133 Mass. 361 |
| Parties | Attorney General v. Jamaica Pond Aqueduct Corporation |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Demurrer overruled.
The case was argued in November 1880, by M. Williams, Jr., for the defendant, and by R. M. Morse, Jr. & H. L. Harding for the plaintiff; and reargued in November 1881, by the same counsel.
OPINION
This information in equity alleges that Jamaica Pond is one of the great ponds of the Commonwealth; that the defendant, by its charter and other statutes, was authorized to draw water from the pond for the purposes of its incorporation, provided it did not reduce the level of the pond below a certain limit referred to in the statutes; that by the St. of 1868, c. 182, the corporation was further authorized, for the purpose of better supplying fresh water and of saving and restraining the water that might percolate from Jamaica Pond into what was formerly known as Spring Pond, to take, hold or purchase certain land near Spring Pond, and to enlarge Spring Pond and to raise a dam on said land; that said corporation, under the St. of 1868, took a certain tract of land of the Brookline Land Company; that it is now digging upon the land so taken a large well as a source of water supply, and is erecting a building, and proposes to establish extensive machinery in connection with said well, for the purpose of taking water from said well and distributing it through the pipes of the corporation; that the corporation has no legal right to use the land taken for these purposes, or to dig wells or draw from wells as a source of water supply; and that the necessary effect of sinking the well and drawing water from it will be to lower the water in Jamaica Pond below the limit fixed as aforesaid, to impair the rights of the public in the use of the pond for fishing, boating and other lawful purposes, and to create and expose upon the shores of said pond a large quantity of slime, mud and offensive vegetation very detrimental to the public health.
The defendant has demurred to the information; and the first ground taken is, that it does not state a case which is within the equity jurisdiction of the court. Assuming, for the purposes of this question, that the defendant has no right or authority to sink wells for the purpose of obtaining a supply of water, the information presents a case where a quasi public corporation is doing and contemplating acts which are ultra vires and illegal, the necessary effects of which are not only to impair the rights of the public in the use of one of the great ponds for the purposes of fishing and boating, but to create a nuisance by lowering the pond and exposing upon its shores slime, mud and offensive vegetation detrimental to the public health.
The cases are numerous in which it has been held that the attorney general may maintain an information in equity to restrain a corporation, exercising the right of eminent domain under a power delegated to it by the Legislature, from any abuse or perversion of the powers, which may create a public nuisance or injuriously affect or endanger the public interests. Agar v. Regent's Canal Co. Coop. temp. Eldon, 77. Attorney General v. Great Northern Railway, 1 Dr. & Sm. 154. Attorney General v. Mid-Kent Railway, L. R. 3 Ch. 100. Attorney General v. Leeds Corporation, L. R. 5 Ch. 583. Attorney General v. Great Eastern Railway, 11 Ch. D. 449. Attorney General v. Great Northern Railway, 4 DeG. & Sm. 75. Attorney General v. Cohoes Co. 6 Paige 133.
The information in this case alleges not only that the defendant is doing acts which are ultra vires and an abuse of the power granted it by the Legislature, but also that the necessary effect of such acts will be to create a public nuisance. This brings the case within the established principle that the court has jurisdiction in equity to restrain and prevent nuisances. And when the nuisance is a public one, an information by the attorney general is the appropriate remedy. District Attorney v. Lynn & Boston Railroad, 16 Gray 242. Attorney General v. Cambridge, 16 Gray 247. Attorney General v. Tudor Ice Co. 104 Mass. 239. 2 Story Eq. Jur. §§ 921-923.
This information, therefore, can be sustained on the ground that the unlawful acts of the defendant will produce a nuisance, by partially draining the pond and exposing its shores, thus endangering the public health.
The defendant contends that the law furnishes a plain, adequate and complete remedy for this nuisance by an indictment, or by proceedings under the statutes for the abatement of the nuisance by the board of health. Neither of these remedies can be invoked until a part of the mischief is done, and they could not, in the nature of things, restore the pond, the land and the underground currents to the same condition in which they are now. In other words, they could not remedy the whole mischief. The preventive force of a decree in equity, restraining the illegal acts before any mischief is done, gives clearly a more efficacious and complete remedy. Cadigan v. Brown, 120 Mass. 493.
There is another ground upon which, in our opinion, this information can be maintained, though perhaps it belongs to the same general head of equity jurisdiction, of restraining and preventing nuisances. The great ponds of the Commonwealth belong to the public, and, like the tide waters and navigable streams, are under the control and care of the Commonwealth. The rights of fishing, boating, bathing, and other like rights which pertain to the public, are regarded as valuable rights, entitled to the protection of the government. West Roxbury v. Stoddard, 7 Allen 158. Attorney General v. Woods, 108 Mass. 436. Commonwealth v. Vincent, 108 Mass. 441. If a corporation or an individual is found to be doing acts without right, the necessary...
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