Brickett v. Haverhill Aqueduct Co.

• Decision Date: 08 September 1886
• Citation: 142 Mass. 394,8 N.E. 119
• Parties: BRICKETT v. HAVERHILL AQUEDUCT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 394

8 N.E. 119

BRICKETT v. HAVERHILL AQUEDUCT CO.

Supreme Judicial Court of Massachusetts, Essex.

September 8, 1886

COUNSEL

Abbott & Pearl, for plaintiff.

J.J. & B.B. Jones, for defendant.

OPINION

MORTON C.J.

It does not appear by this record when the defendant was incorporated. It has been in existence many years, and we presume it was organized under St.1798, c. 59. In 1867 the legislature recognized it as an existing corporation, and conferred upon it the power "to take and use the waters of Round pond and Plug pond, so-called, and Kenoza lake, in the town of Haverhill, to supply the inhabitants of said town with water by an aqueduct, and to enter upon, take, and dig up any and all lands necessary for laying and maintaining aqueduct pipes, reservoirs, gates, dams, or other works necessary for that purpose. St.1867, c. 73. The second section provides that "all damages sustained by entering upon and taking land, water, or water-rights for either or any of the above purposes shall, in case of disagreement with the parties injured, be ascertained, determined, and recovered in the same manner as is now provided in cases where land is taken for highways." Acting under this statute, the defendant took the waters of Kenoza lake, which is a great pond, situated in Haverhill, and, for the purpose of retaining the waters, built a dam across a small natural stream, not navigable, called "Fishing River," which was the only outlet of the pond. The plaintiff owns land situated partly in Massachusetts and partly in New Hampshire, through which this stream flows. He claims that the effect of taking the water and building the dam is to diminish the flow of water through his land, and has brought this common-law action of tort for this diversion of the water of the stream.

Without doubt the defendant was liable to the plaintiff in one form of proceeding for any damages sustained by him by reason of taking the water and building the dam. Watuppa Reservoir Co. v. Fall River, 134 Mass. 267. But it is settled that where the legislature authorizes a municipal or other corporation to take private property for public uses, and provides in the statute a mode of ascertaining and recovering damages, such statutory remedy is the only remedy to which the injured party can resort for acts done within the authority of the statute. It follows that the plaintiff cannot maintain an action for injuries caused to him by any acts of the defendant which it was authorized to do under the statute, but his only remedy is the one pointed out by the statute.

The plaintiff recognizes this principle, but claims that the statute of 1867 is unconstitutional and invalid because it does not make adequate provision for the recovery of damages caused by the defendant's acts under it. The constitution provides that, "whenever the public exigencies require that the property of any individual shall be appropriated to public uses, he shall receive a reasonable compensation therefor." Dec. Rights, art, 10. Undoubtedly a statute which attempts to authorize the appropriation of private property for public uses without making adequate provision for compensation is unconstitutional and void. Connecticut River R. Co. v. County Com'rs, 127 Mass. 50 and cases cited. But the statute of 1867 does not undertake to do this. It provides, in substance, that the corporation shall be liable to pay all damages for injury to private property, and specifies a sufficient remedy to enable the person injured to recover such damages. We are not aware of any case in which it has been held that such provisions are not a sufficient compliance with the requirements of the constitution. The instances are numerous in which aqueduct companies have been incorporated by statutes which contain the same provisions for securing compensation. The successive legislatures, in their statutes, recognized the constitutional obligation to make adequate compensation and deemed that such provisions did, to a practical certainty, secure the rights of individuals whose property was taken or injured. They undoubtedly took into consideration not only the special remedy provided by each statute, but the other rights and...