Lakeside Mfg. Co. v. City of Worcester

• Decision Date: 18 October 1904
• Citation: 72 N.E. 81,186 Mass. 552
• Parties: LAKESIDE MFG. CO. v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 552

72 N.E. 81

LAKESIDE MFG. CO. v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

October 18, 1904

COUNSEL

Henry W. King and Chas M. Rice, for plaintiff.

Arthur P. Rugg and J. F. Humes, for defendant.

OPINION

KNOWLTON C.J.

This was a petition to recover damages for the taking of the waters of Kettle brook, under St. 1895, p. 427, c. 384. The taking included all the waters of the brook at the petitioner's woolen factory and above it, together with the factory itself, the dam, the pond, and lands around it and certain lands of other parties. The petitioner and the respondent agreed to divide the damages into two parts for the purpose of assessment, and submitted to three referees the petitioner's claim for damages 'sustained by the taking of land, water, and water rights, and by the construction of any aqueducts, reservoirs, or other works in relation to the waters of Kettle brook, * * * except the damages incidental to the use and value of the waters of said Kettle brook for purposes of power, including any unoccupied fall or power that may be damaged by said taking,' etc. Under the submission these referees awarded a certain sum as damages, which was paid. The claim for the remaining damages was heard before commissioners under the statutes, and the petitioner afterward demanded a trial by jury in the superior court. The case is before us on exceptions taken by the petitioner at this trial.

The important question is how the exception in the submission which defines the petitioner's present claim is to be construed in its application to certain facts. This claim is for 'damages incidental to the use and value of the waters of Kettle brook for the purposes of power, including any unoccupied fall or power that may be damaged by said taking.' The claim formerly considered was for all other damages caused by this taking. There is nothing in the record to show that damages were claimed by the petitioner for any injury to property which was not taken, and it would seem, therefore, that the intention was to divide the value of all that was taken into two parts, and to have the value of the use of the waters for the purposes of power assessed in one sum, and the value of everything else that was taken assessed in another sum. Of course, the value of each part was to be assessed in reference to the fact that at the time of the taking it was connected and used with the other. If either part had been taken without taking the other, the claim for damages would have been not only for the fair value of the part taken, but also for the injury to that which was left, by reason of the taking of that which was essential to its profitable use. In that case the damage for injury to that which was left would be incidental, in a sense, to the taking of the other part. If the use of the water, and nothing else, was taken, the dam and water wheel and the rights of flowage over lands of other persons would become of little value, and the mill and the machinery would be greatly reduced in value, unless power from another source could be procured to operate them. So, if everything but the use of the water was taken, the right to this use would be worthless without ownership of the land, and the damage for the taking of the land would include the incidental damage to the right to use the water. We do not think the parties intended that this kind of damage should be assessed as incidental to the taking of either part of the property, but that the assessment for each part should be at its fair value as a part of the whole, thus dividing the entire damages represented by the value of all that was taken into two parts, proportional to the values of the respective classes of property for which the assessments were to be made. The diminution in value in the parts of the property which had been procured or constructed in order to make the right to use the water available was not a damage incidental to the taking of the right to use the water, because these parts of the property were also taken, and were to be paid for by the respondent. This conclusion furnishes a ground on which we may dispose of several of the important exceptions.

Another question grows out of the fact that at various points on the stream above the petitioner's mill reservoirs had been constructed and used by riparian proprietors in a reasonable way, and in the exercise of their rights, as such proprietors, to hold back the water, and equalize and increase the power at their mills. Several of these had been in existence for many years, and the use of them, over which the petitioner exercised no control, materially increased the power at its mill. The petitioner contended that it had a legal right to have these reservoirs continued and used as they had been used; but the respondent contended and the judge ruled that the petitioner had acquired and could acquire no prescriptive rights to have the reservoirs maintained and used as the owners of them had been accustomed to use them, and that the value of its power must be determined in reference to this fact. This was plainly correct, and the exceptions founded upon an assumption to the contrary must be overruled. Thurber v. Morton, 2 Gray, 394, 61 Am. Dec. 468; Gould v. Boston Duck Company, 13 Gray, 442; Springfield v. Harris, 4 Allen, 494, 81 Am. Dec. 715; Vliet v. Sherwood, 35 Wis. 229; Crawford Company v. Hathaway (Neb.) 93 N.W. 781, 60 L. R. A. 889-909. The judge, however, instructed the jury as follows: 'You have the right to take into consideration, in determining the amount of natural water power which would be developed on this stream, the watershed, the situation of the privileges as they are along down, the fact that there were reservoirs at that time in 1895, and had been, and the various configurations and conditions relating to that shed and that power, including therein, of course, the nature of the soil, its adaptability, its capacity for holding water, the question whether the swamps would retain water upon any part of the watershed, the question whether or not there are trees, the question whether or not there are springs upon the land, and everything else which existed, as had appeared in the testimony in this case, which will enable you to come to a conclusion as to not only the amount of water which would naturally flow upon that shed from the clouds, but those things which relate to its conservation and preservation and its continued flow.' He further instructed them, as to these upper reservoirs, that they could continue 'as long as the owners saw fit to have them continue; * * * that the waters which were contained in them could not be sent down in unreasonable bodies at any time, and that the privileges below could not be flooded, neither could the waters be unreasonably retained.'

The first request for instructions was that the petitioner's right to use and maintain its dam and its flowage rights were not included in the former submission, and that the damages for the taking of these rights were to be assessed in this suit. This is covered by the first proposition which we have stated as to the...