Smith v. Smith
| Decision Date | 28 November 1888 |
| Citation | 148 Mass. 1,18 N.E. 595 |
| Parties | SMITH et al. v. SMITH et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.M. Knowlton and C.G.M. Dunham, for plaintiffs.
H.K Braley and J.N. Pierce, for defendants.
The plaintiffs concede that the facts of this case fail utterly to support the bill for the principal purpose for which it was brought. John B. Smith, the original plaintiff, alleged in substance, that he was one of the littoral proprietors upon Great pond, and one of numerous joint lessees of fishing rights in that and in Job's Neck pond; and that the original defendants, Amoz Smith, David Fisher, and George Huxford, were acting as commissioners, appointed under a statute, to superintend and regulate the flowing and the draining of the lowlands and meadows around said ponds, and that an opening should be made to connect Great pond with the ocean, and to lower the water in it to a level with the waters of the ocean, both on account of the lands around it and for the better cultivation of the fishes in it; and that the defendants refused to make such an opening, and were proposing and intending to open a passage through the beach between the waters of Job's Neck pond and the waters of the ocean; and that neither of the ponds had any natural outlet, but that there was a strait connecting the two, through which, if one was lowered by cutting a passage from it to the ocean, the waters of the other would flow out, lowering that also, but not nearly so much as if an opening from that had been cut directly to the ocean. He also alleged that, if an opening was made through the breach from Job's Neck pond to the ocean, the food fish, necessary for the sustenance of the perch artificially cultivated in the ponds, would not pass through the opening to Job's Neck pond, and thence through the strait to Great pond; and that, if the opening was made from Job's Neck pond, the waters of Great pond would be so far drawn down through it as to make it impossible to construct and maintain a proper opening from Great pond directly to the ocean, inasmuch as the whole head of water in Great pond was needed to aid, with its force, in making the opening. The first prayer of the bill was that the defendants should be enjoined from keeping up the head of water in Great pond; and the second was that they should be enjoined from opening the beach between Job's Neck pond and the ocean. The manifest purpose of the bill was to compel the original defendants to lower the waters of the ponds by opening the beach from Great pond to the ocean, and not by opening it from Job's Neck pond to the ocean. It is obvious that this court has no jurisdiction to compel the original defendants to open a channel from Great pond to the ocean; and the plaintiff Smith cannot obtain through this proceeding the benefits to his property on Great pond which he hoped for. He now asks us to retain the bill for the purpose of enjoining the defendants from opening the beach between the ocean and Job's Neck pond. The bill was amended by joining as parties the other lessees of the fishing interests in the two ponds, 24 in number, of whom 5 joined as plaintiffs and 19 as defendants. Amoz Smith and David Fisher, two of the original defendants, were also lessees.
The question in the case is whether the plaintiffs are entitled to the injunction for which they now ask. The original defendants were appointed commissioners under the provisions of Pub.St. c. 189, §§ 1, 2, and they have no official authority except what is derived from that chapter. The plaintiffs' counsel contends that such changes as the defendants originally attempted to make were not authorized under that statute. Whether he is correct in that contention it is unnecessary to decide; for, if not, we are of opinion upon another ground, that the defendant commissioners were not authorized to draw off the waters of Job's Neck pond at the time this bill was filed. To hold otherwise would be, in effect, to make their official existence perpetual; for they were appointed in 1882, and soon afterwards they organized, and did all that their appointment required of them, if the Public Statutes were applicable to an improvement such as they made. But in a few months the forces of nature put back the ponds, and the lands about them, into their former condition, and again they did work like that referred to in the original petition. More than five years had elapsed from the time of their appointment, and they were about to go forward, and have a hearing, and do the same work which they were appointed to do in the beginning, and which they had annually done during the whole period of their official existence. The report indicates that, if they should continue their proceedings, there would be the same reason for such action every year, for an indefinitely long time in the future, as there was when this bill was filed. But the statute...
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