Miller v. City of Fitchburg

• Decision Date: 18 October 1901
• Citation: 61 N.E. 277,180 Mass. 32
• Parties: MILLER v. CITY OF FITCHBURG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 32

61 N.E. 277

MILLER v. CITY OF FITCHBURG.

Supreme Judicial Court of Massachusetts, Worcester.

October 18, 1901

COUNSEL

Frank P. Goulding and James A. Stiles, for plaintiff.

Wm. P Hall, City Sol., for defendant.

OPINION

LATHROP J.

On December 1, 1891, the city council of the defendant passed a vote that the mayor be requested to petition the general court to give the defendant the right 'to take and hold by purchase or otherwise, for the purpose of supplying said city with pure water, the waters of Wachusett lake, in the town of Princeton, the waters of Meetinghouse pond, in the town of Westminster, and the waters of Wyman's reservoir in the town of Westminster, for a compensating reservoir for all damages that would otherwise result to mill owners, and for authority to take in like manner all lands, water rights etc., as shall be necessary for the use and enjoyment of said waters taken or purchased.' In pursuance of this vote the mayor petitioned the general court to grant such authority, and St. 1892, c. 60, was enacted, which, by section 10, was to take effect upon its passage, and was approved March 14, 1892. By sections 1 and 2 of this act the city was authorized to take and hold, by purchase or otherwise, the waters of Wachusett lake, in the towns of Princeton and Westminster, and of Meetinghouse pond in the town of Westminster, and the waters which flow into and from the lake and pond, and and water rights connected therewith, and convey the water to and into the city, for the purpose of supplying water to its inhabitants, and to take and hold, by purchase or otherwise, such land on and around the margin of the lake and pond, not exceeding five rods in width, as might be necessary for the preservation and purity of the waters. Section 4 of the act is as follows: 'Said city is also authorized to take and hold, by purchase or otherwise, the waters of Wyman's reservoir, so-called, in the town of Westminster, and the waters which flow into and from the same, and any water rights connected therewith, to be used as a compensating reservoir for all damages that would otherwise arise to mill owners by reason of the taking and diverting of the waters of Wachusett lake and Meetinghouse pond; and to take and hold in like manner such lands as may be necessary for building, erecting and maintaining a dam for storing and distributing said waters. Said city is authorized to contract with mill owners whose rights are affected, in relation to the manner and mode of using, controlling and operating said compensating reservoir.' Wachusett lake and Meetinghouse pond are great ponds, whose natural outlets flow through Wyman's reservoir, and thence into a branch of the Nashua river, carrying the waters through the defendant city. On April 26, 1892, in pursuance of the power given by section 4, above cited, and of a vote of the city council, the city bought of one Wyman various tracts of land in Westminster, including therein the whole of Wyman's reservoir, together with all the rights of Wyman in the waters of the pond and reservoir. The purchase money so expended was charged by the city to its water-loan account. After this purchase the city proceeded to construct a reservoir, occupying substantially the same position as Wyman's reservoir, and a dam, gatehouse, etc. The new dam was built where the old dam of Wyman's reservoir had stood. This land, in 1899, was assessed by the town of Westminster as 'dam and land flowed,' and this is the tax sought to be collected in this action. The city also bought land above the reservoir, and constructed therein a basin, now known as 'Smith's Basin,' a dam, and a gatehouse. This was for the purpose of turning the waters of Meetinghouse pond into the distributing pipes for the use of the inhabitants of the city, which are laid from this basin to, through, and beyond Wyman's reservoir. These pipes go into a chamber of the gatehouse at the dam of Wyman's reservoir in such a manner that, by shutting certain gates and opening certain other gates, the waters of Wyman's reservoir can be drawn into the pipes leading from Meetinghouse pond to the city, and distributed to its inhabitants, though in fact no water has yet been drawn from this reservoir for use by the city. On April 10, 1895, the city made an agreement with the owners of mills on the branch of the Nashua river flowing through the city by which, in consideration of the release of damages on the part of the mill owners, the city agreed to maintain the reservoir for the use of such owners, and to allow the water to flow only into the natural channel of the Nashua river, except in case of a serious conflagration in West Fitchburg...