Rockland Water Co. v. Camden & R. Water Co.

• Decision Date: 03 November 1888
• Citation: 15 A. 785,80 Me. 544
• Parties: ROCKLAND WATER CO. v. CAMDEN & R. WATER CO.
• Court: Maine Supreme Court

15 A. 785

80 Me. 544

ROCKLAND WATER CO.

v. CAMDEN & R. WATER CO.

Supreme Judicial Court of Maine.

November 3, 1888.

In equity. On bill and answer. From supreme judicial court, Knox county.

Bill in equity, filed by the Rockland Water Company to restrain the Camden & Rockland Water Company from drawing water from Oyster River pond, and conveying the same for distribution in Rockland and adjoining towns.

A. P. Gould, for plaintiff. N & H B Cleaves and Chas E. Littlefield, for defendant.

FOSTER, J. The Rockland Water Company claims that it has the exclusive right of supplying the city of Rockland and portions of adjoining towns with the water of Tolman's pond and Oyster River pond for domestic purposes, the extinguishment of fires, and the supply of shipping in Rockland harbor. By bill in equity the plaintiffs ask that the defendant corporation may be perpetually enjoined from withdrawing the water, or any portion thereof, from Oyster River pond, and from conveying the same to the city of Rockland, or towns adjoining, for domestic purposes, the extinguishment of fires, supplying shipping, and the use of manufactories, notwithstanding such right has been granted by the legislature of this state. Both plaintiff and defendant corporation derive their franchises and authority from the state acting in its sovereign capacity. Only such portions of their charters as are necessary to be considered in the determination of this case will be referred to. By the provisions of chapter 381, Pub. Laws 1850, certain individuals therein named, with their associates and successors, were constituted a corporation by the name of the "Rockland Water Company," "for the purpose of conveying to the village of Rockland, a supply of pure water for domestic purposes, including a sufficient quantity for the extinguishment of fires, and the supply of shipping in the harbor of Rockland." The third section of said act reads thus: "Said corporation is hereby authorized for the purposes aforesaid to take, hold, and convey to, into, and through the said village of Rockland, the water of 'Tolman's Pond,' so called, situate in Rockland and Camden, by pipes sunk below the bottom of its outlet; and may also take and hold, by purchase or otherwise, any land or real estate necessary for laying and maintaining aqueducts for conducting and discharging, disposing of, and distributing water, and for forming reservoirs. But nothing in this act shall be taken or construed to prevent the owners of mills or of mill privileges on the stream flowing through the outlet of said pond from using the water thereof in the same manner that they now do or have heretofore done; but said mill-owners shall not, nor shall any other person or persons, be permitted, either by cutting below the pipes of said corporation or in any other way, to withdraw the water or obstruct the water-works of said corporation." There are other provisions, authorizing the construction of an aqueduct from Tolman's pond through the city of Rockland, and for securing and maintaining reservoirs and distributing water by means of pipes throughout the city; for regulating its use and establishing rents; for the payment of damages accruing to mill privileges and mill-owners on the stream flowing through the outlet of the pond; and for the taking of land, or excavating through the same, for the purpose of laying down pipes. Under the authority thus granted this corporation constructed works and introduced water into the city. By a subsequent act of the legislature, (chapter 79, Sp. Laws 1861,) amendatory of the plaintiffs' charter, this company was authorized "to take, hold, and convey," in the manner provided in the original act, "as well the water of Oyster River pond in Camden, as of Tolman's pond, into and through the city of Rockland and town of Thomaston, and also from the city of Rockland into the towns of Camden and South Thomaston, not exceeding one mile from the boundary line of said Rockland; and the corporation shall have the same rights, powers, and privileges, and be subject to the liabilities, limitations, and conditions, and be answerable to parties injured thereby in the same manner in respect to taking and conveying the said water, as are provided for in said act, in respect to taking and appropriating the water of Tolman's pond." The second section of this act is in these words: "The said corporation is hereby empowered to take, use, and appropriate water from both or either of said ponds, for supplying the people of said city and towns with pure water, and for all necessary and useful purposes, subject to the liabilities provided for by said act." In 1885 the legislature granted an act of incorporation to the defendant company by the name of the "Camden and Rockland Water Company," "for the purpose of conveying to and supplying the towns of Camden, Thomaston, South Thomaston, and the city of Rockland with pure water for domestic and municipal purposes, the extinguishment of fires, supplying of shipping, and the use of manufactories." By the provisions of this act the defendants are authorized for the purposes aforesaid "to take, detain, and use the water of Oyster River pond, and all streams tributary thereto, in the town of Camden," etc. Authority is also given for erecting and maintaining dams and reservoirs, laying down and maintaining pipes and aqueducts necessary for accumulating, conducting, discharging, distributing, and disposing of water and forming proper reservoirs, for taking and holding, by purchase or otherwise, lands or real estate necessary therefor, and for the payment of damages for property taken. Prior to the filing of plaintiffs' bill, the defendants had purchased iron pipe, castings, and materials necessary for the construction of their works, and had entered upon the construction of the same. They had also entered into a written contract with the city of Rockland for the term of 10 years, to supply the city with pure water for domestic and municipal purposes and the extinguishment of fires. The defendants have since completed their works, and extended them into the towns of Camden and Thomaston, and are supplying the citizens of Rockland, Rockport, West Camden, and Camden Village with pure water. The plaintiff corporation has never used or undertaken to use or appropriate the water of Oyster River pond, and the case shows that the supply in Tolman's pond is sufficient for all its purposes.

The question which is presented to the court under the claim set up by the plaintiffs involves the validity of the charter of the defendant corporation,— whether the act of incorporation authorizing the defendants to use the water of Oyster River pond for the purposes named is valid, or void as impairing the obligation of contract between the state and the plaintiff corporation. This act, authorizing the defendants to supply the citizens of Rockland with pure water, appertains to purposes of public utility. It emanates from the legislative power of the state, and must be held to have the force of law, unless in passing it the legislature exceeded its powers, or it is found to be in violation of some provision of the constitution of the state or United States. The contention in behalf of the plaintiffs is that the acts of 1850 and 1861 together with what was done in pursuance of the same, constituted an executed contract which is binding on the state, and that the subsequent grant from the legislature of the defendant's franchise, rights, and privileges impairs the obligation of that contract, and brings the case within the contract clause of the constitution of the United States (article 1, § 10) and of this state, (article 1, § 11.) Unquestionably the state in the exercise of her sovereignty may contract like an individual, and be bound accordingly. The cases are numerous in support of this principle. For more than 70 years it has been settled in this country that acts of incorporation, when granted upon a valuable consideration, partake of the nature of contracts within the meaning of that clause of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts. The Binghamton Bridge, 3 Wall. 73; Charles River Bridge v. Warren Bridge, 11 Pet. 527; State v. Railroad Co., 66 Me. 494; Railroad Co. v. Reid, 13 Wall. 266; Stone v. Mississippi, 101 U. S. 816; State v. Noyes, 47 Me. 205. This principle was settled many years ago in College v. Woodward, 4 Wheat. 518. And when rights have become vested under them, the authority of the legislature to disturb those lights is at an end; nor can any subsequent act control or destroy them, unless such power is reserved in the act of incorporation, or, what is equivalent, in some general law in operation at the time the act was passed. Holyoke Co. v. Lyman, 15 Wall. 511; Tomlinson v. Jessup, Id. 457. The question, therefore, to be determined in cases of this kind, where legislative interference is claimed, is whether such interference does in fact impair the obligation of the contract; for there may be legislation such as to injuriously affect the interests of those with whom such contract exists, and yet impair no obligation of contract. Thus it has been held that where a state by act of incorporation confers no exclusive privileges to one company, it impairs no contract by incorporating a second one with powers and privileges which necessarily produce injurious effects and consequences to the first. Turnpike Co. v. State, 3 Wall. 210. The misfortunes which follow in such cases, as the court aptly remarks in that case, "may excite our sympathies, but are not the subject of legal redress." Such was the doctrine laid down in Charles River Bridge v. Warren Bridge, supra, and which from that day to this has been sustained by the courts of last resort in this country. Bridge Co. v. Spaulding, 63 N. H. 298; Canal Co. v. Railroad Co., 11 Leigh, 42. The recent cases of ...