Comins v. Turner's Falls Co.
| Decision Date | 21 October 1886 |
| Citation | 142 Mass. 443,8 N.E. 329 |
| Parties | COMINS v. TURNER'S FALLS CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Austin De Wolf, for defendant.
By the terms of the original charter, and the acts in amendment thereto, the defendant company was empowered to take property for public use, and was constituted the judge to determine the necessity for such taking. Sudbury Mead. v. Middlesex Canal, 23 Pick. 36. The defendant acquired a perpetual easement or servitude in the lands belonging to another. Sudbury Mead v. Middlesex Canal, ubi supra; Heard v Middlesex Canal, 5 Metc. 81; Heard v. Talbot, 7 Gray, 113. The law required the defendant to maintain a dam. The then height of the dam had been found necessary for the purposes for which the corporation was formed. The defendant could not alien its right to flow this land. No corporation can, without legislative authority, lease or alien its franchise, or any property necessary to perform its obligations and duties to the public. Pierce, R.R. 496; Mor Corp. (2d Ed.) § 1120; Tayl. Corp.§§ 125, 305; Green's Brice, Ultra Vires, 124, note a; Thomas v. West Jersey R Co., 101 U.S. 71; Richardson v. Sibley, 11 Allen, 67; Black v. Delaware & R. Canal Co., 22 N.J.Eq. 399. As the defendant could not impair the facilities for discharging its duties to the public by a removal of its dam in whole or in part, it could not convey this land freed of the defendant's right to affect it by flowage. Washb.Easem. (4th Ed.) 587, 698; Godd.Easem. (Bennett's Ed.) 227. See Ang. Water-courses, (7th Ed.) §§ 166, 166a-166n; Gould, Waters, §§ 313, 452-454; 3 Washb. Real Prop. (4th Ed.) 384; Cary v. Daniels, 8 Metc. 466; Seibert v. Levan, 8 Pa.St. 383-387; Hazard v. Robinson, 3 Mason, 272; Dunklee v. Wilton R. Co., 4 Fost. 489; Harwood v. Benton, 32 Vt. 724; Kutz v. McCune, 22 Wis. 628; Roberts v. Roberts, 55 N.Y. 275; Seymour v. Lewis, 13 N.J.Eq. 439; U.S. v. Appleton, 1 Sum. 492. See SHAW, C.J., in Howard v. Locks and Canals, 12 Cush. 267. As the rights claimed by the defendant are reserved, by implication of law, out of its grant, the defendant is not estopped from claiming them by the covenants in its deeds. Adams v. Marshall, 138 Mass. 228; Washb.Easem. 37; 2 Washb. Real Prop. 56. See SHAW, C.J., in Cowell v. Thayer, 5 Metc. 257; Chase v. Sutton Manuf'g Co., 4 Cush. 152; Pierce v. Drew, 136 Mass. 75. The statute of 1880 (chapter 148) was intended to change the relations of the defendant company to the public. The right of maintaining the dam to its original height still exists. Cogswell v. Essex Mills, 6 Pick. 94; Sudbury Mead. v. Middlesex Canal, ubi supra; Heard v. Middlesex Canal, ubi supra; Heard v. Talbot, ubi supra; Howard v. Locks and Canals, ubi supra. If the defendant had the perpetual right, under its original charter, to maintain its dam to its present height, and thereby flow a tract of meadow land, the legislature could not so alter the act of incorporation as to give to the owners of such meadow land future annual damages or damages in gross. Com. v. Essex Co., 13 Gray, 239-253. The mill act cannot apply to a dam, the height of which has been fixed by legislative authority. Cogswell v. Essex Mill Corp., 6 Pick. 94-97; Lee v. Pembroke Iron Co., 57 Me. 481.
Conant & Conant, for plaintiff.
The height of the dam was fixed and established by St.1880, c. 148, as it was March 29, 1880, the time of the approval of said act. Comins v. Turner's Falls Co., 138 Mass. 222. The act was duly accepted by the stochholders of the Turner's Falls Company.
The height of the defendant's former dam was immaterial.
The defendant is not entitled to flow the complainant's land for manufacturing purposes, without the payment of the damage done thereby. Wheeldon v. Burrows, 12 Ch.Div. 31; Suffield v. Brown, 4 De Gex, J. & S. 185; cases cited in Adams v. Marshall, 138 Mass. 228; Preble v. Reed, 17 Me. 169; Burr v. Mills, 21 Wend. 290.
Any implied reservation in the defendant's conveyances would give the Turner's Falls Company no right to flow the lands therein described at the time of filing the complaint. Carbrey v. Willis, 7 Allen, 370.
No legislative authority was necessary to enable the defendant corporation to release its right to flow these lands.
OPINION
The purpose of the legislature, in passing the statute of 1880, (chapter 148,) was to change the Turner's Falls Company from a navigation company into a manufacturing company, to authorize it to maintain its dams at the height existing at the time the act was passed, and, as to all future operations of the company, to put it upon the same footing with the other manufacturing companies of the state. The court accordingly held, at the former hearing of this case, that if the plaintiff was injured by the raising of the respondent's dam after the act was passed, and accepted by the corporation, his remedy was by an application to the superior court under the mill act.
The claim of the respondent, that it has a perpetual right to maintain a dam at the height of the old dam erected under its original charter, is inconsistent with the purpose and spirit of the statute of 1880. The statute relieved the company from its obligations as a navigation company and definitely fixed the height at which it could maintain its dam for manufacturing purposes, and made it for the future subject to all the duties and liabilities of manufacturing companies under our laws. The only reasonable implication is that, if it raises its dam beyond the height thus established, it shall, like other manufacturing companies, be liable to respond in damages to a party injured, under a complaint in the superior court under the mill act. By accepting the act, the company waived and abandoned its right, under its old charter, to build and maintain a dam at a greater height, without compensation to parties injured thereby. The ruling of the superior court, therefore, was correct.
The respondent now contends that as the complainant derives his title from one Severance, to whom the company conveyed in 1851 and 1853, the complainant now "holds the land subject to such rights of flowage as existed at the time of the sale of the land by the defendant." The deeds to Severance were deeds in which the company warrant against all incumbrances, and reserve a right of way. The bill of exceptions does not state any of the circumstances of the sale, or the condition of the land, or the extent to which it was...
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