Parker v. Winnipiseogee Lake Cotton and Woollen Company

• Decision Date: 01 December 1862
• Parties: PARKER v. WINNIPISEOGEE LAKE COTTON AND WOOLLEN COMPANY
• Court: U.S. Supreme Court

67 U.S. 545

2 Black 545

17 L.Ed. 333

PARKER v. WINNIPISEOGEE LAKE COTTON AND WOOLLEN COMPANY.

December Term, 1862

Appeal from the Circuit Court of the United States for the District of New Hampshire.

Mr. Curtis, of Massachusetts, for Appellant.

Mr. Hackett, of New Hampshire, contra.

Mr. Justice SWAYNE.

This is a suit in equity. The appellant filed his bill to procure a remedy against an alleged nuisance. The Circuit Court dismissed the bill. He thereupon appealed to this Court.

It appears in the case that the appellant is the owner in fee simple of a certain parcel of land situated on the Winnipiseogee River, in the Village of Meredith Bridge. He owns, also, in connection with this real estate, the right to use 'one-half of the water sufficient to carry wheels for operating a trip-hammer, grindstone, and bellows.' He claims under Stephen Perley, whose title is undisputed. Perley conveyed the land and the whole of the water-power mentioned to Daniel Tucker, by deed bearing date February 27, 1808. Tucker conveyed the same premises, on the 14th of April, 1832, to F. W. Boynton. The deed of Perley is referred to in Tucker's deed for a description of the land and water right thereby conveyed. While the premises belonged to Tucker, the dam at Meredith Bridge was rebuilt. The amount to be paid by each of the parties interested in the water-power was fixed by arbitration. The arbitrators awarded that Tucker should pay two-twelfths of the cost of the dam 'upon the Meredith side of the river,' and he paid accordingly.

On the 29th of October, 1824, Boynton, by deed of that date, conveyed to Asa F. Parker. In this deed the water right is thus described: 'Which said water privilege is the right to draw one-half of the water from the flume connected with the premises.' On the same day Asa F. Parker, by deed containing the same description of the premises, conveyed to the appellant.

The Winnipiseogee river has its source in Winnipiseogee Lake. The Lake has its outlet at a place called the Weirs, six miles above the Village of Meredith Bridge. The outlet was formerly, by a natural channel, from five to seven hundred feet in length. The water discharges itself from this channel into Long Bay—a sheet of water about four and a half miles long, and from half a mile to a mile wide. At the foot of Long Bay the water is again discharged by a channel about a thousand feet long into 'Little Bay.' At the outlet from Long Bay is Lake Village. From Little Bay the water is discharged into Sanborton Bay, by a channel about fifteen hundred feet in length. At the outlet of Little Bay is Meredith Village, where the premises of the complainant are situated. Little Bay forms the headwater of the dam from which the appellant's water-power is supplied. The water is discharged out of Sanborton Bay, at or near a place called Union Bridge, and thence pursues its course, about ten or twelve miles, to its confluence with the Pemigewasset, below which the united streams take the name of the Merrimac River. This river receiving several affluents on its way—passes by and supplies with their water-power the manufacturing towns of Lowell and Lawrence.

The dam at Meredith Bridge was built prior to 1808. There is a dam at Lake Village, which was built in 1829.

After Perley conveyed to Tucker he cut a canal through his own land, tapping Little Bay, above the dam at Meredith Bridge, and discharging into the river, below the dam, at its entrance into Sanborton Bay.

The defendant is a corporation, created and clothed with its powers by acts of the Legislature of New Hampshire. Its stock is owned by the great manufacturing companies of Lowell and Lawrence, except a few shares, held for purposes of convenience, by individuals. The main object of its creation was to secure a more abundant and regular supply of water for the mills at those places. This was to be accomplished by making Lake Winnipiseogee a vast reservoir of water, to be accumulated and retained in wet weather, and to be drawn off and passed down the stream, as it might be needed, in dry weather.

The flow of water below the lake was thus to be equalized, as far as practicable, throughout the year.

With a view to this object, the defendant has bought up all the water-rights relating to the lake, and all those upon the river above, and for some distance below, Meredith Bridge. Those holding such rights at that village have been compromised with, except the appellant. The answer avers that he was offered the same that was paid to others, and that he refused—seeking to extort an unreasonable and unconscionable sum.

The defendants made excavations at the Weirs in 1845-6, whereby the lake can be drawn down from four to six feet lower than was before possible.

They erected a new stone dam at Lake Villaga in 1851. By means of this dam they can arrest the flow of the water so as to raise it above the intermediate descents back to the lake, and raise the water in the lake and retain it there.

They have enlarged the Perley Canal and increased the flow of water through it. This was done in 1846.

In making their purchases and improvements, the defendants have expended about $300,000. All was done without any objection from the appellant.

It is admitted by the answer, that the defendants intend to make still deeper excavations at the Weirs, and that they have controlled and intend hereafter to control the waters of the lake, both by retention and discharge, so as to equalize at all times throughout the year, as far as practicable, the flow of water below the outlet of the lake.

The gravamen of the appellant's grievances is thus alleged in this bill:

'And the said defendants have thus caused a proportionate inequality in the quantity of water flowing in the river Winnipiseogee, by the premises of your orator greater than any inequality which naturally arose from the ordinary changes of the season, or from the ordinary fluctuations in the head of water in the said lake before the attempted regulation of the same by the said defendants—to the molestation, damage, and injury of your orator in the use and improvement of the said mill privilege and water-power aforesaid.'

'And your orator further represents, that his said water-power is damaged to the same extent as the equality of supply of water at all seasons is disturbed.'

'And that the defendants, with the intent and design to deprive your orator of his just rights, have seized upon and taken possession of the waters of the said Winnipiseogee Lake and River, to regulate and control them as aforesaid, and to use the said lake as a reservoir, out of which to supply the Merrimac River with water in time of drouth, and to use the said Winnipiseogee River as a channel through which to regulate and control such supply, whenever and as often as the supply of water in the Merrimac from other sources may fail, or become insufficient for a motive power for the use of the manufacturing establishments situated thereon, and for the benefit, profit, and advantage of such manufacturing establishments, their owners or occupants, or parties interested therein, or some of them, and to the hurt and damage of your orator in the use, value, and capacity for improvement of his said weter-power at Meredith Bridge aforesaid.'

In reply to these allegations, the defendants say, 'that they have, ever since said dam and excavation were made, used and occupied the same for the purpose of giving greater regularity and steadiness to the flow of water in said river, and to reserve and hold back the surplus water, which would, at wet seasons and during spring freshets, have otherwise run to waste, retarding and interfering with the operation and use of the mills upon said Winnipiseogee and Merrimac Rivers, and discharging the same at such times as the same was required in consequence of the low state of the waters in said rivers for the use thereof, and that the water of said lake and bay has been so managed and used as to be a material benefit and advantage to the mills upon said rivers.'

'And the defendants deny that they have in any manner caused a proportional inequality in the quantity of water flowing in the River Winnipiseogee, by the premises of said complainant, greater either than any inequality which naturally arose from the ordinary changes of the seasons, or from the ordinary fluctuations in the head of water in the said lake before the regulation of the same by the said defendants, to the molestation, damage, or injury of said orator, in the improvement of his said mill privilege and water-power. And said defendants further say, that said complainants' water-power is not damaged by anything which has been done by them, the equality of the supply of water being not otherwise disturbed by them than is in this answer hereinbefore set forth, and its supply being rendered more equal at times when it was formerly scanty, and the excess of water being prevented at periods of high water, which would not aid, but would retard by back-water the operation of said complainants' mill.'

The issue between the parties is thus presented. Several other matters of defence are set forth in the answer. The view which we have taken of the case renders it unnecessary particularly to advert to them.

The appellant alleges an injury to his water-right commensurate, in extent, with the additional inequality in the flow of water in the river, which he alleges to have been caused by the works of the...