McMillan v. Noyes

• Decision Date: 06 April 1909
• Parties: McMILLAN et al. v. NOYES et al.
• Court: New Hampshire Supreme Court

72 A. 759

75 N.H. 258

McMILLAN et al.

v. NOYES et al.

Supreme Court of New Hampshire. Coos.

April 6, 1909.

Transferred from Superior Court, Coos County; Pike, Judge.

Suit by Gilbert N. and Edith E. McMillan against Edward A. Noyes and the Berlin-Shelburne Power Company, intervener, to enjoin the flowage of land. Transferred from the superior court. The power company excepted to the denial of a motion to dismiss the bill as against it Exceptions sustained.

The plaintiffs are riparian owners of land in Shelburne on the Androscoggin river above Lead Mine bridge, at which place the defendant Noyes constructed the dam complained of. At the time of its construction he was the owner of land on both sides of the river at that point, having acquired his title September 1, 1905. The plaintiffs, believing that parties were desirous of building a dam at the bridge which would interfere with their rights above, on August 7, 1905, began the construction of a dam on their premises, which was to extend across the south channel of the river. In the main their purpose was to thereby prevent the building of a dam below. Their real wishes were that no dam should be built, either below them or upon their land. They desired to preserve the natural beauty of their adjoining estate, which is quite extensive. They would not have attempted to build a dam upon their land unless they had believed it was necessary in order to prevent others from building one at the bridge; but, if one was to be built, they wished to build it, and had a purpose to do so, believing that they could turn the power to some useful ends in and around their premises. Before his purchase of the mill privilege at the bridge Noyes had looked the property over, and had some surveys made for the construction of a dam. He built a cofferdam, which was completed October 7th. Thereupon the water began to rise in the river, and on October 9th the plaintiffs were obliged to discontinue work on their dam because the depth of the water thus set back. At that time their dam had nearly reached completion, but no wheel had been installed upon it, and no power house had been erected. It was hastily and rather imperfectly constructed, and, without some changes being made upon it, would not develop a head of more than 2 1/2 feet. Before they had completed their dam, they concluded to build a larger one, extending across both branches of the river. They felt that to accomplish their main purpose it would be well to have a higher and larger dam—one that would in fact extend across the river. They believed that, if they were to prevent the development of power at the bridge below, they should enter upon this larger undertaking. They felt, however, that they could make the undertaking a paying one, and were warranted in that belief; and it is probable that they would have constructed such a dam if they had not been prevented by the raising of the water by the dam below. Noyes proceeded diligently with the work of building a dam at the bridge, and finished it April 10, 1900. His purpose in erecting it and the power house was to put in machinery for developing electricity, and to sell or rent power to other parties for private gain. August 13, 1900, he conveyed his mill privilege, and the adjoining land, to the Berlin-Shelburne Power Company, which has since owned and operated the plant. The Power Company is a voluntary corporation under the laws of this state, and the articles of incorporation provide as follows: "The purposes for which the corporation is established shall be to acquire, improve, and develop one or more water privileges upon the Androscoggin river in the county of Coos in the state of New Hampshire or elsewhere, to acquire by purchase or to construct dams, mills, and power houses, to generate electricity for light, heat, and power, to erect poles and stretch wires thereon for the transmission of electric current through the towns of Shelburne and Gorham and the city of Berlin in said county of Coos and other towns adjacent thereto and for the distribution thereof to all persons desiring to make use of the same, to vend the electric current so generated, transmitted, and distributed for the purpose of furnishing light, heat, and power, or for any other purposes to which it may be adapted, to engage in the business of electric lighting, to engage in the manufacture of lumber, wood pulp, and other commodities, or any other lawful business permitted to said corporation by the laws of the state of New Hampshire, and to have and to exercise the powers conferred upon such corporation by chapter 142 of the Public Statutes of 1901, of the state of New Hampshire and amendments thereof and all other powers and privileges conferred by the laws of said state." The Power Company has voluntarily become a party defendant to this suit which was begun against Noyes and others October 10, 1905. March 30, 1907, the company begun proceedings under the flowage act for an assessment of the plaintiffs' damages caused by its dam. The court found that, when the defendants' dam was completed, the plaintiffs did not have a mill upon the river, or a mill upon a mill site, or a mill privilege thereon which had been lawfully erected within the raeaning of the flowage act, unless they had as a matter of law upon the facts reported, that an injunction should issue against the Power Company, and issue only provided the company has no right to maintain its petition for the assessment of damages for flowing the plaintiffs' land, and that there should be a decree against Noyes and his agents for damages suffered by the plaintiffs up to the date of the filing of this bill. The Power Company moved that the bill be dismissed as against it, and excepted to a denial of the motion.

Alfred R. Evans, Drew, Jordan, Shurtleff & Morris, and Smith & Smith, for plaintiffs. Edmund Sullivan, Branch & Branch, and Anthoine & Talbot, for derendants.

WALKER, J. The finding of the court at the trial upon all the evidence is that an injunction shall issue against the Berlin Shelburne Power Company, which will be hereinafter referred to as the Power Company, provided it has no right to maintain its petition under the provisions of chapter 142, Pub. St. 1901, known as the "Flowage Act." That act provides that "any person or corporation authorized so to do may erect and maintain on his or its land, or upon land of another with his consent, a water mill, and a dam to raise the water for working it, or for creating a reservoir or water, and for equalizing the flow of the same, to its use, and to the use of mills below, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed." Pub. St. 1901, c. 142, § 12. Acquisition of flowage rights under and in accordance with the provisions of this state has been decided to be in harmony with the Constitution, or not to be repugnant to any of its terms, restrictions, or conditions, in so many cases where the point was elaborately discussed and considered, that the question of the constitutional validity of the legislation upon this subject cannot now be deemed an open one in this state; and a re-examination of those cases, however interesting, would not be useful. See Great Falls Mfg. Co. v. Fernald, 47 N. H. 444; Ash v. Cuminings, 50 N. H. 591: Amoskeag Mfg. Co. v. Head, 56 N. H. 386. .

The Power Company, in order to maintain its petition, must bring itself within the terms of the statute, reasonably construed in view of the legislative purpose and intent. It is conceded that one seeking to appropriate the riparian rights of another under the statute must show that the use of the power so acquired for the propulsion of "a water mill" is a "public use," within the meaning of article 12, Bill of Rights, which provides that "no part of a man's property shall be taken from him or applied to public uses without his own consent or that of the representative body of the people." The Power Company assents to this proposition, which is the basis of the plaintiffs' argument upon this aspect of the case. The question is thus logically presented whether the use which the Power Company makes of its water power in connection with its mill or power house is a public use, which it is authorized to exercise for the public advantage. This is a question of law. Concord R. R. v. Greely, 17 N. H. 47, 56; Rockingham, etc., Co. v. Hobbs, 72 N. H. 531, 532, 58 Atl. 46, 66 L R. A. 581.

By its charter or articles of incorporation its purposes are declared to be "to acquire, improve, and develop one or more water privileges upon the Androscoggin river, * * * to acquire by purchase or to construct dams, mills, and power houses, to generate electricity for light, heat, and power, to erect poles and stretch wires thereon for the transmission of electric current thrown the towns of Shelburne and Gorham and the city of Berlin in said county of Coos and other towns adjacent thereto and for the distribution thereof to all persons desiring to make use of the same, to vend the electric current so generated," and "to engage in the business of electric lighting." The furnishing of electricity for light and power, when exercised by a quasi public corporation in accordance with the terms of its charter, may be a public use justifying the exercise of the power of eminent domain for the acquisition of the necessary rights and privileges in the real estate of individuals. In Rockingham County Light & Power Co. v. Hobbs, 72 N. H. 531, 535, 58 Atl. 46, 48 (66 L. R. A. 581), it is said "that the use of land for collecting, storing, and distributing electricity, for the purposes of supplying power and heat to all who may desire it, is a public use, similar in character to the use of land for collecting, storing, and distributing water for public needs—a use that is so manifestly public 'that it has been seldom questioned and never denied.' 1 Lew. Em. Dom....