Dolbeer v. Suncook Waterworks Co.

• Decision Date: 07 June 1904
• Citation: 72 N.H. 502,58 A. 504
• Parties: DOLBEER v. SUNCOOK WATERWORKS CO.
• Court: New Hampshire Supreme Court

58 A. 504

72 N.H. 502

DOLBEER

v. SUNCOOK WATERWORKS CO.

Supreme Court of New Hampshire. Merrimack.

June 7, 1904.

Exceptions from Superior Court; Peaslee, Judge.

Action by one Dolbeer, guardian, against the Suncook Waterworks Company. From a ruling in favor of defendant, plaintiff brings exceptions. Exceptions overruled.

Petition for the assessment of damages under the provisions of the defendants' charter (Laws 1891, p. 445, c. 158). The plaintiff owns a tract of land in Allenstown which entirely surrounds a natural pond containing 15 to 18 1/2 acres. The only outlet of the pond is by percolation through the ground. In 1897 the defendants entered upon the land without the plaintiff's leave, dug up the soil, built a dam by means of which about 10 acres of land are flowed, laid pipes in the land, and appropriated the pond and the land flowed to the uses of their business. At the April term, 1903, of the superior court, it was ruled by Peaslee, J., subject to the plaintiff's exception, that the pond was public water, and that the plaintiff's damages were limited to compensation for the trespass and flowage.

Martin & Howe, for plaintiff.

Page & Bartlett and Mitchell & Foster, for defendants.

CHASE, J. The defendants' charter authorizes them to enter upon and appropriate any pond not belonging to an aqueduct company, to secure it by fences or otherwise, and to make such excavations upon any land as may be necessary for obtaining and conducting the water from the pond and for repairing the works:"provided, that if it shall be necessary to enter upon and appropriate any * * * ponds or land for the purpose aforesaid, or to raise or lower the level of the same, and the said corporation shall not be able to agree with the owners thereof for the damages that may be done by said corporation, * * * either party may apply to the Supreme Court * * * to have the same laid out and the damages," etc. Laws 1891, p. 446, c. 158, § 5. The record raises no question concerning the validity of the "laying out" of the land and easements taken by the defendants, nor does it definitely describe such land and easements. It states that the defendants, without the plaintiff's leave, entered upon his land, dug up the soil, erected a dam, flowed 10 acres of the land by means of the dam, laid pipes, and appropriated the pond and the land flowed to the business of supplying water to the village of Suncook. The plaintiff, by bringing this proceeding, elected to treat the defendants as having acted under the authority of their charter, instead of as trespassers. The defendants make no objection to this course. It is assumed that the "laying out" includes the land and easements actually appropriated by the defendants to their uses, together with the right to enter and repair and renew the structures and pipes, and manage them as may be necessary in the prosecution of the business. The plaintiff is entitled to compensation for the land taken for the site of the dam. for the flowage caused by the dam, for the injury to adjoining land (if any), for the rights taken to lay and maintain pipes in the land, and for any other land or rights in land taken from him. As the case is understood, these are the damages referred to in the record as compensation for "trespass and flowage," and to which recovery was limited by the ruling. The plaintiff says that he is the owner of the pond itself, and is entitled to damages for the taking of it, in addition to the items above mentioned. This is the sole question for consideration.

At the December term, 1889, three cases were decided in which the character of natural, fresh-water ponds, as to being public or private waters, was considered. Concord Mfg. Co. v. Robertson, 66 N. H. 1, 25 Atl. 718, 18 L. R. A. 679, State v. Welch, 66 N. H. 178, 28 Atl. 21, and Percy Summer Club v. Welch, GO N. H. 180, 28 Atl. 22. In the last two cases the question was definitely raised whether a pond containing 300 to 500 acres, situated in the midst of a tract of land belonging to a single owner, was the private property of the landowner or was public property; and it was decided that it was public property. The question was not fully discussed in these cases, but the first case was cited as authority for the decisions, without additional comment, thus adopting the conclusion therein reached and the reasoning by which it was supported. If, as the plaintiff's counsel suggest, the question was not before the court in the first case, and so...