Gloucester Water-supply Co. v. City of Gloucester

• Decision Date: 19 June 1901
• Citation: 60 N.E. 977,179 Mass. 365
• Parties: GLOUCESTER WATER-SUPPLY CO. v. CITY OF GLOUCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 365

60 N.E. 977

GLOUCESTER WATER-SUPPLY CO. v. CITY OF GLOUCESTER.

Supreme Judicial Court of Massachusetts, Essex.

June 19, 1901

COUNSEL

Robt. M. Morse and Forest L. Evans, for petitioner.

A. E Pillsbury and Chas. A. Russell, for respondent.

OPINION

LORING J.

1. The defendant's first contention is that, in estimating the value of the Dikes and Wallace reservoirs, the water company is not entitled to include the value of any water or water rights. These two reservoirs formed the water supply which was in use on September 25, 1895, when the petitioner's plant was transferred to the defendant city. The water which feeds these reservoirs was obtained by digging out two swamps and damming up their outlets. No brook flowed into either swamp in its natural state, but the water collected in the reservoirs gathers there, coming from the watersheds of the neighboring land. Both swamps were taken in 1884 by the water company, and written descriptions of their bounds were filed in the registry of deeds, under St. 1881, c. 167, § 3. In these descriptions it is stated, among other things, that 'the above land or real estate has been taken * * * for forming and erecting dams, reservoirs, to take and hold water for the purposes above set forth, * * * and such other use and purpose as may be necessary and may be authorized by said act.' We are of opinion that this was a valid taking of the water which gathers in the reservoirs. Where land is taken for a reservoir 'to take and hold water,' all water which gathers in the reservoir from springs or by percolation, and none of which flows into the reservoir from a stream, is also impliedly taken. In such a case the requirements of an adverse taking of such water under the right of eminent domain are complied with. See Glover v City of Boston, 14 Gray, 282, 288; Kenison v Arlington, 144 Mass. 456, 11 N.E. 705; Hollingsworth & Vose Co. v. Foxboro Water-Supply Dist., 165 Mass. 186, 189, 42 N.E. 574; Lexington Print Works v. Inhabitants of Canton, 167 Mass. 341, 344, 45 N.E. 746. Where a reservoir is fed by the waters of a brook which has been taken, in terms, by the water company, and is also fed by water which gathers in the reservoir, as water gathers in a well, it would be impracticable to hold that the only water to which the company had a title was the water of the brook, and that it had no title to the water which gathered in the reservoir. Land cannot be used as a reservoir by a water company, without the water company having a right to the water which gathers in the bottom of it by percolation or from springs. We are therefore of opinion that in estimating the value of Dikes and Wallace reservoirs the water company is entitled to the value of the water which gathers there. The objection originally taken by the defendant to the water company's title to the land on which the pumping station stands was waived at the argument.

2. As to the waters of Lily Pond: We are of opinion, on the one hand, that the water company had no right to use these waters for domestic purposes, and therefore that $20,000 must be deducted from the amount of the award; but, on the other hand, we are of opinion that the water company did own the right to flow Lily Pond, and to use its waters for mill purposes, and therefore that the $4,650 allowed by the commissioners is not to be deducted from the amount of the award. The only ground on which the water company claims the right to use these waters for domestic purposes is that for part of the year 1885-86, while Dikes and Wallace reservoirs were being built, it used the waters of this pond in supplying the defendant city and its inhabitants with water. The water company contends that 'the actual appropriation and diversion of the waters was sufficient to constitute a legal taking,' and relies upon Moore v. City of Boston, 8 Cush. 274; Bailey v. Inhabitants of Woburn, 126 Mass. 416; Cowdrey v. Inhabitants of Woburn, 136 Mass. 409; and Inhabitants of Northboro v. County Com'rs, 138 Mass. 263. In addition to these cases cited by the water company is the case of Brickett v. Aqueduct Co., 142 Mass. 394, 8 N.E. 119. The defendant relies principally upon the decision in the case of Warren v. Water Co., 143 Mass. 9, 8 N.E. 606, and upon the case of Hamor v. Water Co., 78 Me. 127, 3 A. 40.

Whether the actual diversion of water is a legal taking of it is a question of water is a cases in this commonwealth are not in entire harmony. It seems to have been held in Brickett v Aqueduct Co., 142 Mass. 394, 8 N.E. 119, that the actual diversion of water was in that case a legal taking of it. It appears from the original papers in that case that a permanent dam had been built across the outlet of the pond whose waters were claimed by the plaintiff to have been tortiously used to his (the plaintiff's) detriment, and a pumping station had been built in connection with it; and it was stated in the bill of exceptions 'that the operations of the company as aforesaid were under the assumed authority of said chapter [St. 1867, c. 73], and were necessary for the purpose of said act.' In that case was no pretense that the defendant had passed any vote stating that the waters of the pond in question, or any part of them, had been taken. The act in question (St. 1867, c. 73) gave the defendant aqueduct company authority to take the waters of the pond, and to enter upon and dig up any land through which it might decide to lay its pipes; but it did not require any description either of the land or of the water rights taken by it to be filed in the registry of deeds or elsewhere. It appears from the brief of the defendant in that case that there are many acts in this commonwealth drawn like the act there in question. St. 1839, c. 114; St. 1845, c. 90; St. 1850, c. 192; St. 1850, c. 198; St. 1850, c. 273; St. 1852, c. 210; St. 1856, c. 241; St. 1857, c. 135,--are all acts which, like St. 1867, c. 73, authorize the taking of water and land, without stating in what the taking shall consist, or requiring a description either of the land or of the water taken to be filed in the registry of deeds or elsewhere. On the other hand, Warren v. Water Co., 143 Mass. 9, 9 N.E. 606, seems to be a decision the other way. The statute there in question (St. 1882, c. 119) authorized the water company to take the waters of any brook, and to take any real estate necessary for its use, and provided that the company 'should cause to be recorded in the registry of deeds for the county of Worcester a description of any land so taken,' but made no provision as to requiring, there or elsewhere, a description of the waters taken by the water company. The declaration in Warren v. Water Co. contained two counts,--one for entering upon the plaintiff's land and laying pipes therein, and the second for deflecting the waters of a brook which had formerly flowed through her (the plaintiff's) pasture. The presiding judge ruled, with respect to the second count, that 'the turning of the water of Shaw Pond by the defendant's servants into its pipes, in the absence of any other act or proceeding of the corporation in relation thereto, was not such a taking of the water or of water rights, under the statute, as would preclude the plaintiff from maintaining an action of tort for the diversion of the waters from the brook running through her pasture'; and an exception to that ruling was overruled, although the question was not discussed in the opinion delivered by this court. And it is of some importance that there are many statutes like the statute in question in Warren v. Water Co., which provide that the water company may take land and water, and then provide that if land is taken a description of it shall be filed in the registry of deeds, making no provision as to what must be done with respect to the taking of water taken by the water company under the act. Among such statutes are St. 1865, c. 132; St. 1866, c. 175; St. 1867, c. 84; St. 1867, c. 272; St. 1868, c. 182; St. 1871, c. 218; St. 1872, c. 345; St. 1873, c. 242; St. 1874, c. 191; St. 1876, c. 42; St. 1880, c. 127; St. 1880, c. 179; St. 1880, c. 203; and St. 1882, cc. 119, 142. And finally in Moore v. City of Boston there is a statement that the legal taking is the actual use of the property taken, as is shown by the fact that it is a description of a previous taking that is to be filed in the registry of deeds. The act in question in Moore v. City of Boston was not drawn like either of the two classes of acts already spoken of. That act (St. 1846, c. 167) authorized the defendant city to take water and land in order to supply its inhabitants with water, and provided, 'The city of Boston shall, within sixty days from the time they shall take any lands, or ponds, or streams of water, for the purposes of this act, file, in the office of the registry of deeds, for the county where they are situate, a description of the lands, ponds, or streams of water so taken.' A parcel of land belonging to the plaintiff's estate was actually used by the defendant city for the purpose of building an aqueduct passing through it, during her lifetime, and a description of the land so taken was filed in the registry of deeds after her death. It was held that the petition for compensation was properly brought by the administrator, and on the ground that the exercise of the physical dominion over the property which it was claimed had been taken was the legal taking of that property. There is a similar statement in Inhabitants of Northboro v. County Com'rs, 138 Mass. 263, in which it was held that a petition for damages must be brought within one year after water has been actually diverted, under a statute which provides that the petition shall be brought 'within one year after...