Conn. River Lumber Co. v. Olcott Falls Co.

• Decision Date: 02 December 1890
• Citation: 65 N.H. 290,21 A. 1090
• Parties: CONNECTICUT RIVER LUMBER CO. et al. v. OLCOTT FALLS CO.
• Court: New Hampshire Supreme Court

21 A. 1090

65 N.H. 290

CONNECTICUT RIVER LUMBER CO. et al.

v. OLCOTT FALLS CO.

Supreme Court of New Hampshire. Grafton.

Dec. 2, 1890.

Bill in equity to restrain the defendants from maintaining a dam across the Connecticut river for manufacturing purposes at Olcott falls, in Lebanon, without providing suitable sluiceways for the passage of logs floated by the plaintiffs down said river.

Edgar Aldrich and Drew & Jordan, for plaintiffs.

W. S. Ladd and Jeremiah Smith, for defendants.

BLODGETT, J. In the original bill the lumber company were sole plaintiffs. Their complaint is that they annually exercise the public right of floating logs down Connecticut river, and that the defendants have obstructed the way by a dam at Olcott falls. The prayer is for a decree restraining the defendants from maintaining the dam without suitable sluiceways, for a provision in the decree determining the dimensions and character of the sluiceways, and for general relief. The defendants demurred on the ground that the alleged grievance is a public nuisance for the abatement of which a suit cannot be maintained by a private person. This objection has been avoided by an amendment joining the attorney general as plaintiff, and the demurrer is overruled without considering the question whether the bill can be maintained by the lumber company. Dover v. Portsmouth Bridge, 17 N. H. 200, 215; Griffin v. Sanbornton, 44 N. H. 246; Smith v. Putnam, 62 N. H. 369, 373; Milarkey v. Foster. 6 Or. 378, and notes in 25 Amer. Bep. 533; State v. Wheeling, etc., Bridge, 13 How. 518. 561, 562, 564, 566, 567; Ice Co. v. Shultz, 116 N. Y. 382, 22 N. E. Rep. 564; Steam-Boat Co. v. South Carolina R. Co., 30 S. C. 539, 9 S. E. Rep. 650; Gould, Waters, §§ 121-127,547; Wood, Nuis. §§ 645-701, 819. If that question becomes material in the progress of the case, it will be examined when its decision is necessary. The mode of trial on a bill in equity for the abatement of a nuisance is not an open question.

"The channel of a public navigable river is properly described as a public highway." Colchester v. Brooke, 7 Adol. & E. (N. S.) 339, 373. "A stream may be a public highway for floatage when it is capable, in its ordinary and natural stage in the seasons of high water, of valuable public use. * * * It is a public highway by nature, but one which is such only periodically, and while the natural condition permits a public use. * * * The public right is measured by the capacity of the stream for valuable public use in its natural condition." Booming Co. v. Speedily, 31 Mich. 336, 343-345; Gaston v. Mace, (W. Va., September 13, 1889, 110 S. E. Rep. 60; Koopman v. Blodgett, 70 Mich. 610, 38 N. W. Rep. 649; State v. Gilmanton, 14 N. H. 467, 479; Carter v. Thurston, 58 N. H. 104; Collins v. Howard, 65 N. H. 100, 18 Atl. Rep. 794; Gould, Waters, §§ 54, 86, 107-112; Ang. Highw. §§ 53-72. The Connecticut river is a natural highway for floating logs. Thompson v. Improvement Co., 54 N. H. 545, 548, 549; Lumber Co. v. Columbia, 62 N. H. 286, 287. At Olcott falls the public has a right of passage for logs as free and convenient as would be afforded by the river in its natural condition, unless the highway has been wholly or partially discontinued by law. The riparian proprietors, incorporated or unincorporated, in the exercise of their private rights, may change the natural condition of the stream so far as changes are possible without an infringement of the public right. The riparian title, including a right of altering the channel and using the water, does not include a right of total or partial discontinuance of the changeable way of which the capacity of the stream in its natural condition is the measure. "Any person owning the land upon both sides of such a river can maintain a ferry or bridge or dam for his own use, provided he does it so as not to interfere with the public easement, without any authority from the legislature, and even in defiance of a legislative prohibition. In such case he would but be making a proper use of his own property. * * * What rights did the legislature give the plaintiff by its act of incorporation? It made it a corporation, and gave it the corporate right to build its bridge. For that purpose only a corporation was not needed, nor was legislative sanction needed. But, being authorized by the legislature to build the bridge, it could not be complained of for any necessary interference with the public easement which was under legislative control; for that which is authorized by law cannot be a public nuisance. * * * The legislature did not empower it to interfere with the stream, except so far as 'it was necessary for the building and maintenance of its bridge." Bridge Co. v. Paige, 83 N. Y. 178, 185, 186; Groat v. Moak, 94 N. Y. 115, 128; Sewall's Falls Bridge v. Fisk, 23 N. H. 171, 177; Hooksett v. Manufacturing Co., 44 N. H. 105, 110; Eastman v. Manufacturing Co., Id. 143, 160; Com. v. Alger, 7 Cush. 53, 99; Ang. Highw. §§ 237-241. "The statute gives a general authority to the sessions to layout highways; but the statute must have a reasonable construction. This authority, therefore, cannot be extended to the laying out of a highway over a navigable river, whether the water be fresh or salt so that the river may be obstructed by a bridge. A navigable river is, of common right, a public highway; and a general authority to lay out a new highway must not be so extended as to give a power to obstruct an open highway already in the use of the public." Com. v. Coombs, 2 Mass. 489, 492; Arundel v. McCulloch, 10 Mass. 70; Com. v. Charlestown, 1 Pick. 180. In Connecticut, under a general power to lay out highways, a road may be laid across navigable water where a suitable bridge will not be a serious obstruction to navigation. Groton v. Hurlburt, 22 Com. 178, 186-189; Brown v. Preston, 38 Conn. 219. Such cases are consistent with the rule that authority to lay out a new highway does not warrant an unnecessary obstruction of an old one. A toll-gate of a turnpike, unnecessarily obstructing a free road, is a public nuisance. Wales v. Stetson, 2 Mass. 143. A franchise to build a railroad between certain points does not include a right to build it unnecessarily on or along a street. Springfield v. Railroad Co., 4 Cush. 63; Commissioners on Inland Fisheries v. Holyoke Water-Power Co., 104 Mass. 446, 449.

The charter of the Franklin Falls Company authorizes them to establish and carry on various manufactures "In the improvement of the water-power of the Winnipiseogee river." Laws 1863, c. 2797. In State v. Franklin Falls Co, 49 N. H. 240, it was held that the defendants could not lawfully maintain a dam that would prevent the passage of migratory fish from the sea to the lake. Their right to carry on manufacturing business "in the improvement of the water-power" included a right to maintain such a dam and make such a diversion of the water from the natural channel as would not infringe any public right of way. Sometimes the water was "not more than sufficient to carry the machinery;" and the company's works could be enlarged to such an extent that no water would ordinarily run over the dam. But the requirements of their business were not held to be material. They could build a stairway for the ascent of fish, as they could build a sluice for the descent of logs. The necessity of building a dam and diverting the water to their wheels was not deemed a necessity of discontinuing the public right of a fish way. The right of riparian owners to improve and use the power of the river, with or without a charter, was undisputed; but it was not suggested by the defendants that their charter discontinued the right of way or authorized its discontinuance; and, such a construction not being claimed, the legal ground on which it must be rejected is not stated in the decision. Whether a river is a high way for fish, or logs, or both, a grant of the advantages of a corporate organization to persons engaged in the improvement and use of the water-power for manufacturing purposes does not show that a total or partial discontinuance of the way was intended by the legislature. Com. v. Essex Co., 13 Gray, 239, 248; Commissioners on Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 450 It merely shows that the franchise asked by the grantees and given by the state is a corporate capacity to exercise common-law rights of riparian owners. A grant to these defendants of a right to do as an incorporated body what they could do as unincorporated partners was necessary, because "corporations are artificial persons, created for specific purposes, and invested with such, and only such, powers us are conferred by law. While natural persons may do with themselves and their property whatever is not forbidden, artificial persons cannot rightfully do anything that is not expressly or by necessary implication permitted by the law of their being." Railroad Co. v. Lvon, 123 Pa. St. 140, 150, 16 Atl. Rep. 607; Case v. Kelly, 133 (J. S. 21, 10 Sup. Ct. Rep. .216. An act authorizing certain persons merely to form themselves into a corporation would be useless. Without an authority conferred by statute upon the Olcott Falls Company to do something, they could do nothing. Pierce v. Emery, 32 N. H. 484, 512. In addition to a mere act of incorporation, a grant of power was indispensable to enable them, as a corporation, to engage in the improvement and manufacturing use of Olcott falls. Without such a grant they would be restrained by injunction, at the suit of one of the members, from carrying on that business; and on quo warranto, brought by the state, their unanimous usurpation of corporate franchises would be sup pressed. They are a corporation for a manufacturing purpose, and can purchase and hold a limited amount of real estate, improve the water-power, make, and maintain on and across the river at the falls all such works as are necessary and proper to accomplish the...