Seacoast Water Commission v. City of Portsmouth
| Decision Date | 06 October 1964 |
| Citation | 106 N.H. 15,203 A.2d 649 |
| Parties | SEACOAST WATER COMMISSION et al. v. CITY OF PORTSMOUTH et al. |
| Court | New Hampshire Supreme Court |
Burns, Bryant & Hinchey and E. Paul Kelly, Dover, for plaintiffs.
Louis M. Janelle, U. S. Atty., Nashua, and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., for the United States.
John C. Driscoll, City Sol., Fuller, Flynn & Powell, and Bynton, Waldron & Dill, and Wyman P. Boynton, Portsmouth, for city of Portsmouth.
Petition for adjudication of rights to use water, for declaratory judgment, and for injunction filed May 15, 1962 by the Seacoast Water Commission, city of Dover, city of Somersworth, town of Madbury and town of Durham, all municipal corporations in this state and located in the county of Strafford, seeking to restrain the defendant United States of America from conveying under contract the Bellamy River Dam to the defendant city of Portsmouth for its exclusive use, and a determination of the rights and interests of the various parties in and to the water supply in Strafford county, particularly the Bellamy River Dam.
The case was removed to the U. S. District Court on May 21, 1962 and subsequently remanded to Strafford County Superior Court on December 19, 1962 for lack of jurisdiction. See In re Green River Drainage Area, 147 F.Supp. 127, 134 (D.C. Utah 1956). On January 20, 1963, following remand, the defendants United States of America and the city of Portsmouth filed special pleas and motions to dismiss. The motion of the United States was upon the grounds that the United States has neither consented to be sued nor waived its immunity from suit under the facts and circumstances presented by the petition and that 43 U.S.C. § 666 is 'not susceptible of a construction that Congress has thereby consented to suit against the United States exclusively in state courts.' The same motion further alleged that granting of the relief sought by the plaintiffs would constitute substitution of the will of the court for that of the governmental agencies charged by law with the conduct of all affairs concerning military installations; and that the petition sets forth no ground for relief. The city of Portsmouth alleged in its motion that the petition is in essence a suit against the United States of America which has not waived its sovereign immunity; that to grant all or any part of the relief prayed for by the plaintiffs would be unconstitutional as being violative of the principle of the separation of powers between legislative, executive and judiciary, and that the petition under no circumstances can be construed to set forth any cause of action upon which any court could grant relief.
The Seacoast Water Commission, with a principal place of business at Durham, was constituted by act of the Legislature. Laws 1957, c. 364. It consists of the chairman of the Water Resources Board and one representative from each city, town and water district in the seacoast area, and one representative from the University of New Hampshire, appointed by the Governor with the advice and consent of the Council, for the purpose and with the power and rights to represent the interests of the cities, towns and water districts in the seacoast area and the University of New Hampshire in connection with any future metropolitan area and inter-municipal water supplies and systems.
The petition alleges that this action is brought as a class action on behalf of the plaintiffs individually and as members of the Seacoast Water Commission as well as on behalf of the cities, towns and water districts in the seacoast area and of the University of New Hampshire as members of the Seacoast Water Commission and/or as beneficiaries or parties in interest therein and that the rights which are the subject of this action are common to all parties.
In September 1951, the 82d Congress authorized the Department of the Air Force to construct and establish a military air force base in Portsmouth which is now known as the Pease Air Force Base. The area selected for the base comprised the northwesterly part of Portsmouth, northwesterly part of Greenland and the southern portion of Newington.
Located within the central portion of this area was the Portsmouth municipal airport as well as established water rights of the city which included the right to pump and remove subterranean waters, in an area to the west in which there were two impounding reservoirs. These had been developed to furnish the city with its main source of water supply for both domestic and industrial purposes.
In order to prevent condemnation proceedings by the Government, the city of Portsmouth on January 27, 1954 entered into a contract which in substance provided that the city would convey all its rights and lands within the air base area and permit the Government to commence immediate construction of the base under certain provisions with respect to the water resources, in consideration of the conveyance to the city of a replacement water supply to be constructed by the Government, of equivalent quantity and quality with sufficient additional supply to provide for the air base requirements. The contract contained an estimate of the capacity of the city's four water sources to be four hundred twenty million gallons per year or one million, one hundred and fifty thousand gallons per day. This estimate was not concurred in by the city, and the subsequent operation of the water system produced a revised estimate of the four sources of supply to be two million, one hundred and seventy thousand gallons per day. This estimate was incorporated in an amendment to the original contract dated August 3, 1960 which increased by 1,000,000 gallons per day the amount to be furnished as provided in the original contract.
Pursuant to its agreement under the contract, the Government undertook a replacement development by drilling wells and appurtenances in the Johnson's Creek area in Madbury. These wells which were turned over to Portsmouth on completion, after continuous pumping operations, ran dry in a few months indicating a safe maximum yield of about one million gallons per day, which was clearly insufficient to satisfy the replacement agreed upon and the additional quantity required by the air base, and was not acceptable to Portsmouth.
In a supplemental agreement dated August 1, 1961, Portsmouth and the Government mutually agreed that the Johnson Creek development in Madbury and Dover had been found deficient in supplying the required quantity of water and that the Madbury wells together with a dam and reservoir to be built on the Bellamy River in Madbury would be an acceptable means of providing a substitute water supply.
It was further stipulated there be added to Article I of the contract under 'Obligation of the Owner' the following new paragraph:
Article 6 of the original 'Service Contract' was deleted and the following paragraph substituted:
In the meantime other sources of supply to comply with the original contract had been sought by the Government and in January, 1958, certain test borings were made in the Pudding Hill section, so-called, preparatory to constructing a series of wells to be connected with the Johnson Creek area wells for the purpose of fulfilling the obligation of the Government under its contract.
In February, 1958, the Government was notified by Dover that it objected to the construction of the wells in the Pudding Hill area on the ground that irreparable loss would be caused to Dover by diverting and depriving it of water to which it had superior and paramount rights, and that the Government would be held responsible for any resulting damage if construction was continued. In March, 1958, Dover instituted legal proceedings against the Government to enjoin it from acquiring by eminent domain proceedings or otherwise any interest or title to any land or water rights in the Dover-Madbury area for the purpose of providing a new water supply for Portsmouth under the contract dated January 27, 1954, and further requested the Court to order the Government to construct the proposed Bellamy River dam and reservoir in Madbury. While this petition was pending in the United States District Court, having been removed there from the Stafford County Superior Court, and before any decision thereon, the Government, on April 21, 1958, instituted condemnation proceedings to condemn 10.47 acres of land in the Pudding Hill area of Madbury for the purpose of constructing wells to be connected with the Johnson Creek wells. See United States v. 10.47 Acres of Land, 218 F.Supp. 730 (D.C.N.H.1962). On July 11, 1958, the District Court granted the Government's motion to dismiss the proceedings of the city of Dover. The Court stated in part: Town of Durham, N. H. et al. v. United States, D.C., ...
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