Otis Co. v. Ludlow Mfg. Co.
| Decision Date | 20 May 1904 |
| Parties | OTIS CO. v. LUDLOW MFG. CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Boyd B. Jones and Chas. L. Gardner, for plaintiff.
Wm. H Brooks, James B. Carroll, and Walter S. Robinson, for defendant.
The plaintiff, a riparian proprietor upon the Chicopee river, has lately built across the stream a dam 19.29 feet high and 353 feet long, with a length upon the rollway of 210 feet. Its expenditure for this development of power was $271,000. The water power is used to generate electricity, which is conducted about three-quarters of a mile up the stream to the plaintiff's factory at Three Rivers, in Palmer, and there applied to the plaintiff's motors. This factory previously had been run in part by water power taken from the river further up, and in part by steam power. The first-mentioned defendant, the Ludlow Manufacturing Company which will hereinafter be called 'the defendant,' is also a riparian proprietor upon the river, and at a point two miles below the plaintiff's dam it has lately built a dam whose height is 51 feet, whose length is 880 feet, and the length of whose rollway is 300 feet. The defendant's expenditure for this development of power was $800,000. This dam was built to enable the defendant to generate electricity to be conducted about four miles down the stream to furnish additional power for use at the defendant's old factories and at a new one in Ludlow. The defendant's dam sets back water upon the plaintiff's dam in such a way as very greatly to diminish the water power there, and this bill is brought to enjoin the defendant from maintaining the dam and setting back the water.
The defendant became the owner in fee, in 1891, of certain land which includes the site of this present dam and the accompanying structures. In 1894, and again in 1898, it employed an engineer to take levels and make surveys, plans and soundings along and upon the property, for the purpose of determining whether or not it was practicable to erect a mill dam upon the site of the dam since completed, and he did the work for which he was employed. In January, 1899, the defendant employed one Ball, a civil and hydraulic engineer of experience, and the contract with him recited that the defendant had determined to erect a mill dam on this site, and required him to proceed immediately to make surveys, cross-sectionings, soundings, plans, and estimates necessary for the erection of the dam, with raceways, canals and other structures, and to do such other things as might be necessary for the proper development of the water power on this mill site. Immediately thereafter the defendant determined upon the present height and present site of the dam. Ball, and the defendant's other agents and employés, commenced without delay the work of preparation for building the dam and other structures and making said development, and they prosecuted it and the work of construction of the dam and other structures, continuously and with due diligence, to the completion thereof within a reasonable time. The actual work of building the dam was begun on August 3, 1899, with the commencement of the construction of the tailrace, and within a reasonable time after making this beginning the defendant completed the dam, with all its appurtenances, and all the transmission lines and mechanism for the utilization of the water power in connection with a new mill which it had built near its other mills at Ludlow, and in connection with the other mills previously constructed, for the working of which this power was to be used. This work was completed and the power was ready to be utilized on October 16, 1901, and the mills were put in operation with the power, but the use of it was suspended by the bringing of this suit. On the 4th day of April, 1900, the plaintiff determined to build a dam at the site of its present dam, and then began its preparatory work therefor, and prosecuted this work with due diligence until the 11th day of August, 1900, when it began the work of excavating for the foundations of its dam, and from this latter date it continuously prosecuted the work of construction with due diligence to the completion within a reasonable time of its dam and all appurtenances necessary for the utilization of the power. This work was completed on July 1, 1901. Each part of the work of building its dam, the preliminary, the preparatory, and the permanent work, was begun by the defendant before the corresponding part of the work of building the plaintiff's dam was begun by the plaintiff. The plaintiff's dam was completed first.
The principal question in the case is, What is the construction of the mill act as applied to these facts? Pub. St. 1882, c. 190, § 2 (Rev. Laws, c. 196, § 2) is as follows: 'No such dam shall be erected to the injury of a mill lawfully existing either above or below it, nor to the injury of a mill site on the same stream on which a mill or mill dam has been lawfully erected and used, unless the right to maintain the mill on such last mentioned site has been lost or defeated by abandonment or otherwise; nor shall a mill dam be hereafter erected or raised to the injury of any such mill site which has been occupied by the owner thereof, if such owner, within a reasonable time after commencing such occupation, completes and puts in operation a mill, for the working of which the water of such stream is applied,' etc.
The plaintiff contends that the defendant has violated that part of the statute which forbids the erection of a dam to the injury of an existing mill site on which a mill dam has been lawfully erected, and the defendant contends that the erection of the plaintiff's dam was a violation of that part of the statute which forbids the erection of a mill dam to the injury of a mill site which has been occupied by the owner thereof, when the owner, within a reasonable time after commencing such occupation, completes and puts in operation a mill, for the working of which the water of such stream is applied. The statute was enacted for the regulation of the rights of property owners upon streams adapted to use for the supply of power. The framers of it recognized the fact that such property, in many cases, could not be used judiciously by an owner for a short distance along the stream, without affecting the property of other owners above and below, and preventing a like use of the stream for mill sites on other land. An enforcement by riparian proprietors of their rights at common law would often make it impossible for any of them to use water power effectively. Therefore their personal interests, as well as the interests of the public, call for legislation modifying the common law, and regulating the rights of owners of this peculiar kind of property. Our mill act is intended to meet this requirement in a way to promote the development of water power from streams for the benefit of individual owners, no less than for that of the general public. Lowell v. Boston, 111 Mass. 454-464, 15 Am. Rep. 39. The framers of the statute foresaw the possibility of a desire of two riparian proprietors owning lands near together on the same stream, each to establish a mill on his own land, when an advantageous use of the water for power would make it impracticable to maintain a mill in more than one of the two places. It was proper to provide for such cases by statute. Accordingly, we have the provision last above quoted. This is, in substance, that, as between riparian proprietors so situated, priority of appropriation shall give the better right. The Legislature might have established a different rule. If the time of completion of a mill had been adopted as the time which should determine precedence in the right to use the water, there would have been an inducement to owners to engage in a race to see which could first get the water upon his wheel. In different ways the results of such a rule...
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