Salisbury Mills v. Forsaith

• Decision Date: 10 August 1876
• Citation: 57 N.H. 124
• Parties: Salisbury Mills v. Forsaith.
• Court: New Hampshire Supreme Court

57 N.H. 124

Salisbury Mills v. Forsaith.

Supreme Court of New Hampshire

August 10, 1876

Flowage act of 1868---Foreign corporation.

A foreign corporation, having erected a dam upon their own land in another state, whereby the water of a stream is set back upon the land of a riparian owner above in this state, cannot by petition have the damage of such land-owner assessed, and their rights of flowage ascertained and fixed, under the New Hampshire act of 1868, for the encouragement of manufactures

FROM ROCKINGHAM CIRCUIT COURT

PETITION under the act of 1868, ch. 20, to encourage manufactures praying to have assessed the damages to the defendant's land in this state, caused by the plaintiffs' dam in Massachusetts. The questions arise upon a demurrer to the petition. The material facts appear in the opinions. The questions arising upon the demurrer were transferred to this court by RAND, J., C. C.

Goodall for the plaintiffs

The intention of the law was for mills, reservoirs, and dams to be built, which on the whole were for the public benefit of the people of this state; and any flowage in this state occasioned by any dam which a man built, when he had a right to build it, is covered by the law, whether the dam be in the state or not. If the flowage is here, and the reservoir and flowage, as a whole, are of benefit to this state, that is all that is required. The law covers the right to flow. The court has full power to settle all questions of flowage within this jurisdiction. It is a question of flowage and drainage of any land flowed or drained by a dam, wherever situated, provided it be built where the corporation had a right to build it.

Jurisdiction over the place of the actual erection of the dam is not necessary. Jurisdiction is only material over the actual place of the flowage, because the dam was to be built where the party could do what he pleased, and could put up such erection as he chose; but if he, by using his own property as he had a right, caused damage by flowing land above by back water, he should be liable. The petition alleges it to be of public benefit; and although in the state of Massachusetts just over the line, such a market may be made for the produce of the people of New Hampshire as to make it a public benefit to the people of this state. And the putting in of the words, the people of this state, shows the legislature intended that although such reservoirs might be of public benefit to people of other states by being held and used as reservoirs for their benefit, yet such benefit could not be taken

into account on settling this question as to reservoirs erected here. That this state would not permit such reservoirs for the use of mills out of the state alone, nor unless they were so used in the state as to be of public benefit in New Hampshire; and if they would put up such mills and erections as would make them, on the whole, beneficial to the people of New Hampshire, they might use them for mills below.

Why should not the flowage law govern this case? We are strictly within the words of the statute. The court have to construe the intent to have been different from the words, to avoid our conclusion. They have to say that the place where the dam was built must not only be "on his or its own land," but also to go further, and say the legislature intended and meant to say that it must not only be his land, but it must be his land in New Hampshire; also, that the words "mills below upon any stream not navigable" do not mean below anywhere upon the stream, as the statute says, but mean something different--"anywhere below in New Hampshire;" that the words "any person or any corporation authorized by its charter so to do" do not mean any person or corporation out of the state of New Hampshire, for, if they did, they could not erect upon their own land out of the state where their lands were.

Now it is clear the legislature can say, that if foreign corporations will come into this state and put up reservoirs, mills, and dams, on a stream which rises in this state and flows into any other state, whereby flowage or drainage is caused to lands in this state, and if such foreign corporations on the stream below in Massachusetts, on their own land, erect a dam and mills under the laws of Massachusetts and the provisions of their statutes, which dam is a part of the same system of flowage and drainage, and if, by reason of such dam in Massachusetts, land is flowed in New Hampshire, all the damages occasioned in New Hampshire by such flowage therein, whether occasioned by dams in New Hampshire or Massachusetts, may all be recovered in one suit, if, on the whole, the commissioners, court, or jury find the erections to be of public benefit to the people of New Hampshire. Marston, for the defendant

The petition alleges that the plaintiffs, a Massachusetts corporation, have erected a dam across the Powow river and on their own land in Massachusetts, where their woollen mills are situated, by reason of which the lands of the defendant, a citizen of New Hampshire, are overflowed and injured, for which an action has been commenced; and concludes with a prayer for the assessment of all damages, past and prospective, under the act of July, 1868.

To this petition the defendant demurs, and makes the following points in support of his demurrer:

1. The act of July, 1868, is entitled an act for the encouragement of manufactures, and the object of the act is manifestly for the encouragement of manufactures in New Hampshire, and not elsewhere. The authority

granted, in the first section, to any person to erect a dam on his own land, and thus create a reservoir for the use of mills below, is of course to be exercised where the legislature had jurisdiction, and not in a foreign territory where it had none. All legislation is necessarily territorial. STORY, J., said, in Farnham v. Blackstone Canal Co., 1 Sum. 62,---"Every legislature is supposed to confine its enactments to cases or persons within the reach of its sovereignty." The right granted to erect a water-mill, and a dam to raise water for working it, the appointment of a committee to assess damages, the examination of the dam and mills by the committee to determine what damage they may occasion and whether the flowing may be of public use to the people of this state, necessarily require the dams and mills permitted to be within our legislative jurisdiction. The license to erect mills and dams, and create a reservoir, is given upon certain terms and conditions, and subject to the regulations expressed in the act. If they are not complied with, or cannot be enforced, no right is given. But neither the legislature nor the courts of New Hampshire have jurisdiction over the parties plaintiffs, nor over their mills and dams in Massachusetts. The case of Wooster v. Great Falls M. Co., 39 Me. 246, was founded on a similar flowage law in Maine. The dam was partly in New Hampshire, and flowed lands in Maine; and it was held that the flowage act was not applicable, because the dam was partly in New Hampshire. United States v. Ames, 1 W. & M. 76, was case for flowing arsenal lands in Springfield, by a dam outside the lands of the United States; and it was held that the flowage acts of Massachusetts did not apply to lands of the United States;---see, also, Com. v. Clary, 8 Mass. 72; People v. Godfrey, 17 John. 225.

2. By the second section of the act, either party may apply to the court, in the county where the grievance arises, for an assessment of damages, &c. Suppose the defendant, Forsaith, should petition for an assessment of damages under this act: How is the court to obtain jurisdiction over this Massachusetts corporation? How enforce any order or judgement? How comple a party in Massachusetts to pay at one time for all the damage that may possibly be occasioned in the future by acts on their own land in their own state? The act of 1868 is in derogation of the common law and the natural rights of the citizen, and goes to the very verge of constitutional limit, if not beyond it, however restricted may be the construction given to it. It should not and cannot be extended by implication. There must be a pressing public necessity to justify the invasion of private rights by superior power. We submit that there is no such pressing public necessity for enlarging the capacity of a woollen mill in Massachusetts, as will justify the taking of private property in New Hampshire to accomplish that object. Jordan v. Woodward, 40 Maine 317; Williams v. School District, 33 Vt. 532; Com. v. Clary, 8 Mass. 72.

LADD, J

The petition states that the plaintiffs are a corporation duly established by law, having their principal place of business at

Salisbury and Amesbury, in the county of Essex and state of Massachusetts: from which I suppose it is to be understood that they are a Massachusetts corporation. The petition further shows, that the plaintiffs' mills for the manufacture of cotton and woollen goods, as well as the only dam they have situated below the defendant's land, are in Massachusetts; that they have one dam in Massachusetts and three in New Hampshire above the defendant's land, and that upon one of the latter dams, that at the Trickling Falls, East Kingston, they have a saw-mill and a grist-mill,---those two mills, situated above the defendant's land on the same stream, being the only works, so far as appears from the petition, carried on by them in this state.

It is to have assessed the damage for flowing and draining the defendant's land, situated in New Hampshire on a bend of the river between their two dams in Massachusetts, that this petition is brought.

The petition is founded upon ch. 20 of the Laws of 1868, and the plaintiffs say they are...