Holyoke Water-Power Co. v. Connecticut River Co.

• Decision Date: 23 April 1884
• Citation: 20 F. 71
• Court: U.S. District Court — District of Connecticut
• Parties: HOLYOKE WATER-POWER CO. v. CONNECTICUT RIVER CO.

20 F. 71

HOLYOKE WATER-POWER CO. v. CONNECTICUT RIVER CO.

United States Circuit Court, D. Connecticut.

April 23, 1884

N. A Leonard and Alvan P. Hyde, for plaintiff.

Henry C. Robinson, Charles E. Perkins, Charles H. Briscoe, and Arthur F. Eggleston, for defendant.

SHIPMAN J.

The Connecticut River Company was incorporated in the year 1824 by the general assembly of the state of Connecticut, 'for the purpose of improving the boat navigation of Connecticut river,' a navigable stream, and was empowered, among other things, to remove obstructions from the channels and bars of said river from and above the bridge at Hartford to Springfield; to lock the falls at Enfield on said river; to make channels to aid them; to construct a canal on either bank of said river near said falls, and to construct a dam or dams for the purpose of entering and leaving the locks 'provided the extension and form thereof shall be such as shall not prevent the convenient passage of boats and lumber down the river, nor obstruct the passage of fish;' to demand and receive specified tolls from every boat passing up said river or through the locks; and to purchase, hold lease, or alien mill seats or manufactories upon or near Enfield falls. The locks and canals were to be, and were, constructed under the direction of a board of commissioners, who were named in the charter, and who were authorized to direct further improvements to be made, if, after the completion of the works, such improvements should become necessary. Under this charter the defendant, before 1829, built a dam from the west bank into the river at Enfield falls, and also built a canal upon the west side of the river, about five and one-half miles long, with the necessary locks and other works. In 1829 the water of the river was turned into the canal, and since then boars engaged in the navigation of the river have continuously passed through the canal, and so have avoided the difficulties incident to the passage of Enfield falls. The defendant has also continuously leased the use of the water and water-power in said canal to the occupants of mills upon its banks. Upon the defendant's application to the board of commissioners to examine, approve, and allow certain proposed dams in the river, the commissioners, on September 3, 1849, found and authorized as follows: 'That the depth of the water at and above the northern termination of said canal is not sufficient for the safe and easy passage of boats into and out of said canal at low stages of water, and that it is expedient and necessary that the depth of water should be increased. We do also find that the dam and works proposed or in the process of erection in said river, and extending westwardly from the east bank of the same, are well adapted to effect that object of increasing the depth of the water, and that the same will not impede the passage of fish up said river, or the passage or floating of boats, timber, or other property down the same. We do therefore authorize, approve of, and allow the erection and completion of the dam and other works in said river, whether proposed or now in progress, as the same are hereinafter specified and described, viz.: The dam extending westerly from the east bank of said river four hundred and sixty-one (461) feet, and at such height as shall at the lowest stage of water, when the water is at the height of the top of said dam, raise the water in said canal to the height of five (5) feet and (9) inches on the miter sill of the upper guard gate. Also to sink a crib at the western end of said last-mentioned dam, and continue and keep the same there of twenty-eight feet in breadth westerly from said west end, and at such height from the bottom of said river as will leave the water two feet in depth at its lowest stage, leaving the opening in the river from the western end of said dam to the eastern end of the old or former dam not less than one hundred (100 feet, and from the western side of said crib not less than seventy (70) feet to the eastern end of said old dam. Also to make a sunken dam across the said opening of seventy (70) feet from the westerly side of said crib to the eastern end of said old dam, by the sinking of cribs or other materials on the bottom of said river, and to make and construct said sunken dam such height that the water shall not, at its lowest stages, ever be less than four (4) feet in depth upon and above the top or highest part of said sunken dam.'

In the year 1855 the defendant made another application to the board of commissioners 'to approve, authorize, and allow certain alterations on and additions to' its works and dams, which had been constructed or were in process. The commissioners decided as follows:

' * * * We do therefore decide that it is inexpedient to modify or vary said order of 1849, but we adopt and confirm the same so far as it specifies and fixes the depth of water at five feet nine inches on the miter sill of the guard lock at low water. We believe it is better for all parties that, so far as the action of the commissioners is concerned, it should be held as a settled point that the water at low stages should be and continue to be at this specified depth, and that all the erections and obstructions of the company should have reference to that depth. We do therefore approve the erection of the eastern dam, the making of the cribs and sunken dam in the opening between the dams, but decide that certain of those cribs which are above the general level be taken down and reduced to such level as soon as the weather and the stage of water will allow, and in the mean time they are to remain as they now are. As it respects the navigation down Enfield falls, it is very inconsiderable and dangerous at the best, and at the extreme low water is scarcely attempted or practicable, and we think the weight of evidence produced before us shows that the recent erections have not increased the danger or the difficulty. The eastern dam we think somewhat higher than necessary to secure the specified depth of water at low stages, and incline to the opinion it might properly be lowered a few inches; but as some persons, who were understood to have been remonstrants, suggested it might be injurious to them, as they were interested in property above the falls, we make no order on that subject.' The dams remained in the condition in which they were authorized to be by these two orders of the commissioners until 1881. The defendant fully availed itself of the permission to sink cribs in the opening between the dams, and when they were repaired, as hereinafter mentioned, in the summer of 1881, there was in the gap 'a pile of stone which had been built right round on a circle from one wing to another,' about two feet below the surface of the water at the opening. At this time about 4,000 cubic feet of water per second were flowing at Holyoke.

In 1881 the defendant's charter was amended by the general assembly of Connecticut as follows:

'Whereas, the dams of the Connecticut River Company, at Enfield falls, have become inadequate by reason of natural changes in the channel of the Connecticut river, and by reason of the uneven and greatly diminished flow of water therein, making said river for a distance of several miles below said dams unnavigable; and,

'Whereas, to improve the navigation upon said river, both above and below said dams, and to preserve and maintain the water-power of said company, it is necessary that the water in the canal of said company, and in said river above said canal, shall be of greater depth than the dams of said company, at their present heights, will allow; therefore.

'Resolved, by this assembly: Section 1. That the Connecticut River Company are hereby empowered and authorized to unite their said dams at Enfield falls, aforesaid, so as to continue and extend the same across the Connecticut river, and to raise said dam and dams to such a height that the crest or crests thereof shall not exceed the height of seven feet above the miter sill of the upper guard gate or lock, at the upper entrance to said canal, as said miter sill now is; but the dam at the extreme west end may be fifteen inches higher than its present height, sloping on a regular incline for three hundred feet: provided, that said company shall construct and maintain at the said dam or dams, and as a part thereof, subject to the approval of the fish commissioners of this state, suitable and proper fish-ways to admit the free passage of fish up and down said river, over and above said dams, and to be kept open at such seasons as shall be necessary for the passage of fish; said fish-ways at all times to be under the direction and approval of said commissioners, or of such other authority as this state shall appoint with reference thereto.'

The second section related to the assessment and payment of damages which should accrue to the property of any person by reason of the exercise of the powers conferred by the amendment.

In July, 1881, the defendant began to fill the gap between the dams, and after the building of a coffer-dam 404 feet long above and in front of the opening, built, below the dams and across the gap between the wings, and connecting with the old dams, a piece of new dam, 285 feet long, and, after it had settled 2 inches, 10.80 inches above the average crest of the old dam. The gap between the wings was 100 feet. The respective surveyors differ about two inches in the height of the new dam before it had settled. I adopt the measurement of the defendant's surveyor. In the new piece of dam there is an opening 14 inches deep, and from 40 feet to 42 feet in width, for the passage of fish and lumber over the dam. The elevation of the old dam above the miter...