Dodge v. Inhabitants of Rockport
| Decision Date | 15 June 1908 |
| Citation | 85 N.E. 172,199 Mass. 274 |
| Parties | DODGE et al. v. INHABITANTS OF ROCKPORT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry T. Lummus and Chas. Neal Barney, for petitioner.
Frederick H. Tarr, for respondent.
The petitioner Albert Dodge, is the owner of a tide mill and milldam on Mill river; and a brook called by various names among which are Alewife brook and Cape Pond brook, flows into Mill river above his dam. One branch of Alweife brook comes from a great pond called Cape Pond. The defendant town has taken the waters of Cape Pond under the provisions of St 1894, p. 65, c. 78. The jury have found that the petitioner has sustained a considerable amount of damage by this taking; and the question is raised whether he is entitled to recover therefor.
It is provided by section 4 of the statute before us that the town 'shall pay all damages sustained by any person or corporation in property by the taking of any land, right of way, water, water source, water right or easement, or by any other thing done by said town under the authority of this act.' If the petitioner were a riparian owner upon a natural stream flowing from Cape Pond, he clearly would be entitled to recover the damages which he has sustained. Rockport v. Webster, 174 Mass. 385, 392, 54 N.E. 852; Proprietors of Mills on Monatiquot River v. Randolph, 157 Mass. 345, 32 N.E. 153; Howe v. Weymouth, 148 Mass. 605, 20 N.E. 316; Cowdrey v. Woburn, 136 Mass. 409; Watuppa Reservoir Co. v. Fall River, 134 Mass. 267. The Legislature might have permitted the respondent town to take the waters of Cape Pond without making any compensation to owners on streams flowing therefrom. Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 18 N.E. 465, 1 L. R. A. 466. But it is also true, as was said by Hammond, J., in Rockport v. Webster, 174 Mass. 385, 392, 54 N.E. 852, 854, that Here the provision for the recovery of damages is of the same broad character that was before the court in Sheldon v. Boston & Albany Railroad, 172 Mass. 180, 51 N.E. 1078, and Hyde v. Fall River, 189 Mass. 439, 75 N.E. 953, 2 L. R. A. (N. S.) 269.
But although there was evidence that the present outlet of Cape Pond into Alewife brook was the original and natural one, there was also evidence that this was merely an artificial channel, dug before the year 1700, though it was not disputed that the waters of Cape Pond have flowed in their present channel through the present outlet for some 200 years. The respondent asked the justice at the trial to instruct the jury that if they found that the brook connecting Cape Pond with Alewife brook was not a natural water course, but an artificial channel, then the petitioner could not maintain his action. The justice refused the request, and submitted to the jury the question whether the brook would in the course of nature flow at low tide across the flats upon which the petitioner's dam is located, as a water course, if there were no dam there. The jury answered this question in the affirmative, and found that the petitioner had sustained damage in his mill property and privilege from the respondent's taking to the amount of $600.
The ruling of the court that upon these facts the petitioner's rights were analogous to those of a riparian proprietor was sufficiently favorable to the respondent. It was immaterial, under the circumstances proved, whether the outlet from Cape Pond was originally natural or artificial. It had flowed in that course for more than 200 years, and all persons had acquiesced in that condition. Stimson v. Brookline (Mass.) 83 N.E. 893, and cases there cited.
And the plaintiff's rights werr at least analogous to those of a riparian owner. The water of the brook flowed into the pond created by his dam, and raised its level to a higher point and for a longer time than otherwise would be the case. His use of the water of the brook was similar to that of an ordinary...
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