Proprietors of Mills on Monatiquot River v. Inhabitants of Randolph

• Decision Date: 27 October 1892
• Citation: 157 Mass. 345,32 N.E. 153
• Parties: PROPRIETORS OF MILLS ON MONATIQUOT RIVER v. INHABITANTS OF RANDOLPH, HOLBROOK, AND BRAINTREE. HOLLINGSWORTH et al. v. SAME. O. AMES & SONS v. SAME. STEVENS et al. v. SAME. MORRISON et al. v. SAME, (two cases.) JENKINS MANUF'G CO. v. SAME. HOBART v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 345

32 N.E. 153

PROPRIETORS OF MILLS ON MONATIQUOT RIVER

v.INHABITANTS OF RANDOLPH, HOLBROOK, AND BRAINTREE.

HOLLINGSWORTH et al.

v.SAME.

O. AMES & SONS

v.SAME.

STEVENS et al.

v.SAME.

MORRISON et al.

v.SAME, (two cases.)

JENKINS MANUF'G CO.

v.SAME.

HOBART

v.SAME.

Supreme Judicial Court of Massachusetts, Norfolk.

Oct. 27, 1892.

Exceptions from superior court, Norfolk county; ALBERT MASON, Judge.

Actions by the Proprietors of Mills on Monatiquot River, Sumner Hollingsworth and others, O. Ames & Sons Corporation, James T. Stevens and others, A.S. Morrison and others, L.O. Morrison and others, the Jenkins Manufacturing Company, and Betsey B. Hobart against the inhabitants of Randolph, Holbrook, and Braintree. Petitions for the assessment of damages resulting from the taking by defendants of the water of Great pond. Judgment was entered for plaintiffs, and defendants except. Exceptions overruled.E.C. Bumpus and R. Foster, for plaintiffs.

R.M. Morse and A.P. French, for defendants.

FIELD, C.J.

These were petitions under St.1885, c. 217, § 4, for the assessment of damages resulting from the joint taking by the respondents of all the water of Great pond, lying partly in the town of Braintree and partly in the town of Randolph. The petitions were tried together before the same jury. It appears that at the trial two of the respondents asked the court to rule “that the petitioners, in the aggregate, were entitledto but two peremptory challenges, and the respondents, in the aggregate, to but two. The court refused so to rule, but ruled that each side was entitled to sixteen peremptory challenges,-that is, two for each of the eight petitioners.” The exception taken to this ruling was waived at the argument in this court. See Insurance Co. v. Hillmon, 145 U.S. 285,12 Sup.Ct.Rep. 909. The respondents asked the court to rule “that, if any of these petitioners could recover against the respondents, it was the petitioner corporation, the Proprietors of Mills on Monatiquot River, and it alone;” and they further asked the court to rule “that, if the petitioners, the mill owners below, could recover for the loss of any of the water of the pond, it could only be for the overflow in excess of the storage capacity, as fixed by the act of 1818, and by the dam erected by virtue of that act.” Both these rulings the court refused to give, and it instructed the jury upon the right of the petitioner corporation and of the mill owners on the stream to recover damages in accordance with the rule laid down in Reservoir Co. v. Fall River, 134 Mass. 267.

The act of 1818, referred to, is St.1818, c. 35, entitled “An act to incorporate the Proprietors of Mills on the Monatiquot River, in Braintree.” The exceptions recite that this corporation “owned a dam which held up and regulated the waters of Great pond, and certain land and flowage rights used in connection therewith, at or near the border of said pond, which dam and land and flowage rights acquired by and belonging to the said corporation were taken by the respondents under said act of 1885; but this corporation itself owned no mill, and carried on no industry, and had never issued any stock. The other petitioners were owners of several mill sites below, on the Monatiquot river, which is the outlet of Great pond to the sea. The cases were first heard by a board of three auditors, who found, among other things not material to this bill, that all the petitioners, owners of mill sites on the stream below, with the exception of James T. Stevens et al., were members of the petitioner corporation; *** and that the said corporation, for at least sixty years last passed, had always drawn and let down the stored water for the best convenience of the mill owners, members thereof, on the stream below.” The respondents contend that St.1818, c. 35, is materially different from St.1826, c. 31, under which the Watuppa Reservoir Company was incorporated, and that, therefore, the decision in Reservoir Co. v. Fall River, ubi supra, is not applicable. These differences are said to be as follows: The Watuppa Reservoir Company was formed, as the act declares, “for the benefit of the manufacturing establishments in Fall River,” but there is no similar provision in St.1818, c. 35. The Watuppa Company by said act was authorized to “make reserves of water in the Watuppa ponds, *** and to draw off said reserve water in such quantities, at such times, and in such manner, as they shall judge to be most for the interest of all concerned.” The provisions of St.1818, c. 35, on this subject are quoted hereafter. The Watuppa Company was authorized to issue stock, (section 4, Id.;) and it was found as a fact that it had issued stock, and that the stock had always been owned by the mill owners in Fall River. The Proprietors of Mills on MonatiquotRiver were not authorized to issue stock, and have never issued any, and it does not appear that any arrangement resembling the issue of stock has ever been made by this corporation. Again, it is said that the act under which the city of Fall River took a part of the waters of the North Watuppa pond (St.1871, c. 133, §§ 4, 5) recognized the Watuppa Reservoir Company and other petitioners in that case as having water rights which were protected by that statute; while St.1885, c. 217, under which the respondents in the present case acted, contains no similar provisions; and it is argued that the ground of the decision in the Watuppa Reservoir Company Case is that the court found that it was “clear from its charter and by-laws that it was framed merely for the purpose of creating a convenient agency to own and manage the dam for the benefit of the mills below,” and that the court cannot find this to be true of the corporation of the Proprietors of Mills on Monatiquot River.

We are, however, of opinion that the differences suggested are not sufficient to take the present cases out of the rule of damages laid down in Reservoir Co. v. Fall River, ubi supra. See Proprietors of Mills v. Braintree Water Supply Co., 149 Mass. 478, 21 N.E.Rep. 761. St.1818, c. 35, is not so explicit in regard to the purpose for which the corporation was created as St.1826, c. 31, but we think there can be no reasonable doubt of its meaning. Its title is “An act to incorporate the Proprietors of Mills on Monatiquot River, in Braintree.” It has been sometimes said that the title is not part of an act, and this was formerly, if not now, true of the acts of the British parliament. Bar.Obs.St. 449; Attorney General v. Weymouth, 1 Amb. 19. But in the legislatures of the states of the United States and in the congress of the United States, the title is, in a legal sense, a part of every act passed. The practice in this country is that a bill is introduced and reported with a title, and the title read with the other parts of the bill, and is amended or stricken out in the same manner as any other part of the bill. In the constitutions of some of the states it is provided that certain bills shall embrace only one subject, which shall be expressed in the title. In this commonwealth there are no constitutional provisions concerning the titles of acts not passed by the general court, and the titles are usually short, and often are of little use in determining the meaning of statutes. Cases, however, may occur in which the title becomes important as a declaration by the legislature of the object of the act. Hadden v. Collector, 5 Wall. 107. The title to the act we are considering we think is significant upon the question whether it was intended to establish a corporation for diverting the waters of Great pond from the stream which was the natural outlet, or of reserving them for the benefit of mills on that stream. It is not recited in the exceptions that the corporators named in the act were at the time of its passage proprietors of mills on the Monatiquot river, but from the exceptions it is to be inferred that during 60 years, at least, before the trial of these petitions, certain mill owners on that river had been members of this corporation. In the body of the act it appears that its purpose is to make reserves of waters in the ponds named in the act by erecting dams “to raise the waters in said ponds as high as its original bounds, to lower the outlets of said ponds, and to draw off such portions of said waters from any of said ponds in such quantities and at such times as they, or a major part of them, or their special agent for that purpose, shall judge best for the interest of all concerned.” This shows that the purpose was to make reserves of water for the purpose of discharging it through the outlets of the ponds, “for the interest of all concerned,” and, taken in connection with the title, makes it reasonably clear that certain proprietors of mills on Monatiquot river were intended as some, if not all, of the persons concerned in the use of the water intended to be reserved in Great pond. The practical construction put upon the act for at least 60 years, as appears by the exceptions, confirms this view of the statute. St.1885, c. 217, § 4, provides that “the said towns, or such of them as act jointly, shall jointly pay all damages sustained by any person or corporation in property by the joint taking of any land, right of way, water, water source, water right, or easement, or by any other thing done by said towns, or such of them as act jointly, under the authority of this act.” This provision is ample, and we think the court rightly ruled that the corporation of the Proprietors of Mills on Monatiquot River was entitled to recover the market value of its dam, land, and flowage rights which were taken, as property distinct from the right to use the water of the river, the flow of which was regulated by this corporation, which belonged to the mill owners on the stream, and that the mill owners could recover for the injury to their estates in being deprived of the use of a part of the water...