Howe v. Inhabitants of Weymouth
| Citation | 20 N.E. 316,148 Mass. 605 |
| Parties | HOWE et al. v. INHABITANTS OF WEYMOUTH. SANFORD et al. v. SAME. |
| Decision Date | 01 March 1889 |
| Court | United States State Supreme Judicial Court of Massachusetts |
W. Gaston, E.C. Bumpus, and F.W. Rogers, for petitioners.
R.M Morse, H.E. Swasey, and M. Morton, Jr., for defendants.
The record of the taking of water by the town of Weymouth, after reciting the authority given to the town by the statute to take for the purpose set forth in the statute the waters of Weymouth's great pond, and the waters which flowed into and from the same, and any water rights connected therewith proceeded to take and hold for the sole use of the town all the waters of the pond, with the land under the same, and all the waters in all the streams that flowed into or from the pond, for the purpose of supplying the town and its inhabitants with pure water, to extinguish fires, generate steam, and for domestic and other uses. The town had authority to take, and did take, all the waters of the pond. It might have taken a part of the water either by expressly taking a specified quantity, as in AEtna Mills v. Waltham, 126 Mass. 422, or by taking land and constructing on it works of limited capacity for pumping water, and constructively taking as much of the water as could be drawn from the pond by the works upon the land taken, as in Bailey v. Woburn, Id. 416, or in some other way. In the latter case it was in answer to the contention that the statute did not authorize the taking of a part, but only of all the waters of the pond, that the court said that the statute intended that only so much water should be taken as was required for the purposes named in the act. But in the case at bar the town expressly exercised the right given to it by the legislature, and took all the waters of the pond for the public use. Evidence that all the water was not needed and would not be used for the purposes for which it was taken would be incompetent to show either that the taking was illegal or that all the water was not taken. The taking of the water did not consist in the actual diversion of the water, but in the acquisition of the right to divert it. By the taking, the town acquired the right to divert all the water from the petitioners' mills, and the petitioners were deprived of all rights to the use of it. The damages occasioned by the taking are estimated as of the time of the taking, and are occasioned by the quantity of the water the right to divert which is taken, irrespective of the amount actually diverted. Smith v. Concord, 143 Mass. 253, 9 N.E. 642; AEtna Mills v. Waltham, ubi supra; Bailey v. Woburn, ubi supra; Cowdrey v. Woburn, 136 Mass. 409; Ipswich v. Commissioners, 108 Mass. 363.
To show the quantity of water which would be actually diverted from the petitioners' mills, the court admitted evidence offered by the respondent of the population of Weymouth, and of the ratio of its increase in the past, and of the quantity of water that the town had diverted for its use during the year before the trial, and of the average quantity to each inhabitant used in several cities, and estimates from these data, as to...
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