State v. Sunapee Dam Co.

• Decision Date: 15 March 1901
• Citation: 50 A. 108,70 N.H. 458
• Parties: STATE et al. v. SUNAPEE DAM CO.
• Court: New Hampshire Supreme Court

50 A. 108

70 N.H. 458

STATE et al. v. SUNAPEE DAM CO.

Supreme Court of New Hampshire. Merrimack.

March 15, 1901.

Original bill by the state and others against the Sunapee Dam Company for the ascertainment and enforcement of public and private rights in Sunapee Lake. Decree for respondent.

Sargent & Niles, Eastman & Hollis, George R. Brown, and Streeter, Walker & Hollis, for plaintiffs.

Ira Colby and Albert S. Wait, for defendant.

BLODGETT, C. J. December 7, 1820, upon the petition of certain mill owners on Sugar river, which has its source in Sunapee Lake, one of the public waters of the state, the defendants were incorporated and made a body politic "to sink the outlet of said lake at the source of said Sugar river to the depth of ten feet below the low-water mark of said lake, and to erect and maintain a dam there with suitable gates and flumes to the height of said low-water mark, for the benefit of the mills and mill privileges aforesaid: provided said corporation shall make or tender reasonable compensation for all damages which may accrue to individuals by the erection of said dam and works." The corporation was organized the following rear, and soon after its organization built a dam at said outlet at a height which has remained unchanged, and by means of such dam has since controlled the outflow of the lake. The present proceeding is to restrain an alleged infringement of public and private rights in and to the waters of the lake through changes in the water level occasioned by the maintenance of the defendants' dam and works, and is instituted under the general equity powers of the court, and particularly under section 3, c. 205, Pub. St., which provides that "any legal rights, public or private, infringed by a change in the water level of a natural lake or pond, * * * may be ascertained and enforced in a constitutional manner on a bill in equity without prior ascertainment of the right by a suit at law; and rights of boating, fishing, and navigation may be enforced on a bill in equity brought by the attorney-general in the name of the state." The plaintiff the state of New Hampshire complains of an infringement of the public rights of navigation and fishing and of injury to its fish hatcheries. The plaintiff the Woodsum Steamboat Company complains of an infringement of the public right of navigation to its special damage, and of its rights as a littoral proprietor. The other plaintiffs are littoral proprietors upon the lake, and complain of an infringement of their rights as such. It being found that the defendants have not drawn down the waters of the lake to a point below that authorized by their charter without restrictions as to times or seasons when it might be done, all the plaintiffs are apparently remediless upon this branch of their case, if the legislature had authority to make the grant. While the question thus presented is both interesting and important, as well as one upon which there is more or less diversity of judicial opinion in different jurisdictions, extended discussion of it is not now deemed to be necessary in view of the recent decisions in Connecticut River Lumber Co. v. Olcott Falls Co., 65 N. H. 200, 21 Atl. 1090,13 L. R. A. 826, and Manufacturing Co. v. Robertson, 66 N. H. 1, 25 Atl. 718, 18 L. R. A. 679, in both of which public, private, and chartered rights were exhaustively argued by counsel and carefully considered by the court. An examination of those cases will show that the doctrine enunciated in both of them, so far as it is directly applicable to the present inquiry, is that while in this state lakes, large natural ponds, and navigable rivers are owned by the people, and held in trust by the state in its sovereign capacity for their use and benefit, such use and benefit is not limited to navigation and fishery, but includes all useful and lawful purposes: and that the beneficiaries and the trustee, acting as a body politic and trustee, can authorize by their legislative agents even an extinguishment of the trust and an abandonment of the trust estate. Connecticut River Lumber Co. v. Olcott Falls Co., 65 N. H. 378, 384-388, 21 Atl. 1091, 1093, 1095, 13 L. R. A. 831, 834, 835, 836; Manufacturing Co. v. Robertson. 66 N. H. 6-8, 12, 19, 22, 25 Atl. 720, 721, 723, 727, 728, 18 L. R. A. 683, 684, 686, 689, 691. These decisions, in addition to the high source from which one of them came, commend themselves to our judgment by their intrinsic soundness; and we are accordingly constrained to hold that the defendants' charter was such a one as the legislature had the power to grant. If this be so, our duty is simply to construe the charter, not to rejudge it. It is for the legislature alone, "as the sole depository of the sovereignty of the state, * * * to judge of the public interests and welfare in the disposition and use of its public waters." As was well said by Mr. Justice Story in Charles River Bridge v. Warren Bridge, 11 Pet. 420, 605, 9 L. Ed. 773: "Whether the grant of a franchise is or is not, on the whole, promotive of public interests, is a question of fact and judgment, upon which...