State v. Sunapee Dam Co.

Citation72 N.H. 154,72 N.H. 114,55 A. 899
PartiesSTATE et al. v. SUNAPEE DAM CO. et al.
Decision Date11 April 1903
CourtSupreme Court of New Hampshire

Bill by the state of New Hampshire and others against the Sunapee Dam Company and others. On reserved case. Affirmed.

Edwin G. Eastman, Atty. Gen., and Sargent, Niles & Morrill, for plaintiffs.

Ira Colby and Albert S. Wait, for defendants.

REMICK, J. (BINGHAM, J., concurring).

Lake Sunapee is about 10 miles in length, and varies in width from one-half mile to 3 miles, and is one of the leading summer resorts in the state. About 1821, the defendants, by authority of the Legislature, constructed, and have since maintained, a dam at the outlet of the lake, by means of which they draw water from the lake to supply power to mills below. The complainants are the numerous riparian proprietors whose estates bound the lake; various owners of steamboats, launches, boats, wharves, landings, and boathouses employed in navigation of the lake; and the state, as owner of a fish hatchery on its shores, and trustee for the public of the right of fishery in its waters.

The bill was filed March 17, 1898, and charged, in substance, that the defendants had made, and were threatening to make, an unreasonable use of the waters of the lake, as against the plaintiffs; and had thereby inflicted, and were threatening to inflict, Irreparable injury upon the plaintiffs. The prayer was for an injunction and for general relief. The answer was, in substance, a denial of the unreasonable use alleged. The trial court ordered the case to a referee to find the facts. Upon the facts reported the case was transferred to the Supreme Court. Upon the case thus transferred the law governing the rights of the parties was declared. It was also decided that the plaintiffs were entitled to "an assessment of compensatory damages" on account of unreasonable use of the water in 1897. But the court, thinking, evidently, that a repetition by the defendants of the wrongs complained of was improbable after judicial declaration of the law of the case, concluded, in the exercise of discretion, to withhold "at this time" equitable relief "by way of injunction." State v. Sunapee Dam Co., 70 N. H. 458, 463, 50 Atl. 108, 59 L. R. A. 55. There was, however, no order for the dismissal of the bill. The only order was, "Case discharged," which left the bill in control of the superior court for such further proceedings, in conformity with the opinion, as should seem proper. Thereupon the defendants moved in the superior court that the bill be dismissed. The motion was denied, and the defendants excepted. The plaintiffs then moved (1) that a master be appointed to assess the damages to which the Supreme Court had declared them to be entitled; (2) that all persons claiming to have suffered by the unreasonable use of 1897 have leave to appear as plaintiffs; (3) that costs be awarded to the plaintiffs in the main action. The motion was granted, and the defendants excepted. The case is before us upon these exceptions.

The difficulty encountered is over the order for a master to assess damages. Upon this question the court are equally divided. BINGHAM, J., and myself are of the opinion that the superior court committed no error in granting the plaintiff's motion in this respect. The CHIEF JUSTICE and CHASE, J., are of the contrary opinion. WALKER, J., does not sit. Under these circumstances there can be no authoritative decision, except for the purposes of this case; but, as the result of our attitude is to affirm the order of the superior court in the disputed particular as effectually, so far as concerns the present case, as if it were done by the concurrence of all the judges (State v. Perkins, 53 N. H. 435; Lathrop v. Knapp, 37 Wis. 307; Kolb v. Swann, 68 Md. 516, 13 Atl. 379; Durant v. Essex Co., 101 U. S. 555, 19 L. Ed. 154; Hartman v. Greenhow, 102 U. S. 672, 676, 26 L. Ed. 271), it is due to the parties, and seems to be required by law (Laws 1901, p. 563, c. 78, § 4), that we should file an opinion.

It has been contended (1) that equity is without jurisdiction to assess the damages— that it must be done at law; (2) that, if it can be done in equity, it is the constitutional right of the defendants to have it done by a jury; and (3) that, in any event, the motion for a master should have been denied, and the assessment sent to a jury as a matter of discretion or practice, and that in this view, as well as upon the ground of constitutional right, the action of the superior court in granting the plaintiffs' motion should be reversed.

I. That damages may be assessed in equity (the court otherwise having jurisdiction) In order "to do complete justice" and accomplish "final determination," is firmly established. Dennett v. Dennett, 43 N. H. 499, 503; Chartier v. Marshall, 51 N. H. 400, 56 N. H. 478; Carpenter v. Fisher, 68 N. H. 486, 493, 38 Atl. 211, 73 Am. St. Rep. 616; Ellis v. Association, 69 N. H. 385, 389, 41 Atl. 856, 42 L. R. A. 570; Winslow v. Nayson, 113 Mass. 411, 421, 422; Catheart v. Robinson, 5 Pet. 264, 278, 8 L. Ed. 120. The vital question, then, is, did equity have jurisdiction of the present case at the time the assessment in question was ordered? It has been authoritatively declared that "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, of the Public Statutes of 1891." State v. Sunapee Dam Co., 70 N. H. 458, 459, 50 Atl. 108, 59 L. R. A. 55. In form, at least, the proceeding is in equity, and all that has been done to the present time has been according to the course in equity. That the proceeding is also one of equitable cognizance, not alone under the statute, but, "when tested by the general principles of equity," is an irresistible conclusion from the facts and circumstances shown by the record before us. The fundamental fact to be observed in this connection is that the parties, plaintiffs and defendants, all had rights in the waters of Lake Sunapee, which they could vindicate in a proper action. Clement v. Burns, 43 N. H. 609, 616; Conn. River Lumber Co. v. Olcott Falls Company, 65 N. H. 290, 390, 392, 21 Atl. 1090, 13 L. R. A. 826; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 11, 18-20, 23, 25 Atl. 718, 18 L. R. A. 679; Aborn v. Smith, 11 R. I. 594; Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Company, 79 Wis. 297, 302, 48 N. W. 371; 1 Spell. Inj. & Ex. Rem. § 518; Gould, Wat. (2d Ed.) §§ 148, 149. The defendants* charter did not give them the exclusive right. The act contains no express terms to that effect, and a legislative Intent to make absolute surrender of the public right of fishery and navigation and of the riparian rights of the shore owners will not be implied. Conn. River Lumber Co. v. Olcott Falls Company, 65 N. H. 290, 291, 375, 379, 380, 21 Atl. 1090, 13 L. R. A. 826; Commonwealth v. Essex Co., 13 Gray, 239, 248; Inland Fisheries Commissioners v. Holyoke Water Power Company, 104 Mass. 446, 450, 6 Am. Rep. 247. The act in terms limits the power of the company to raise the waters of the lake by restricting the height of the dam to low-water mark, and they are still further limited, by implication of law, to a reasonable use of the water, even within their charter limits. State v. Sunapee Dam Co., 70 N. H. 458, 461, 463, 50 Atl. 108, 59 L. R. A. 55. Another fact important to be borne in mind is that, although the plaintiffs and defendants each had rights in the lake, their extent had not been defined and limited, nor the proper mode of exercising and enjoying them ascertained and determined, at the time the plaintiffs filed their bill. They lay in common and confusion, with no boundary but the law's unapplied and indefinite boundary of reasonable use. Gardner v. Webster, 64 N. H. 520, 522, 523, 15 Atl. 144; Conn. River Lumber Co. v. Olcott Falls Company, 65 N. H. 290, 291, 390, 392, 21 Atl. 1090, 13 L. R. A. 826; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 11, 18-20, 22, 23, 25 Atl. 718, 18 L. R. A. 679; State v. Sunapee Dam Co., 70 N. H. 458, 461, 463, 50 Atl. 108, 59 L. R. A. 55; Aborn v. Smith, 11 R. I. 594. As a result, the defendants had repeatedly encroached upon the rights of the plaintiffs and their grantors, inflicting upon them manifestly irreparable injury. The extent, character, and frequency of these encroachments and injuries will appear from the following extracts from the report of the referee: "The natural variation of the level of the lake * * * was not perceptibly changed by the erection and maintenance or management of the defendants' dam prior to its reconstruction in 1851," and the use of the dam by the defendants during that period was "without any apparent objection on the part of those under whom the plaintiffs now hold or claim, or others, except when the height of the water was increased by the addition of flashboards, which occurred about 1845, and resulted in the flowing of the lands of shore owners." "The defendant corporation, in 1851, * * * reconstructed the dam. * * * The result of changes made at this time, and the addition of planks or flashboards creating a higher level of the water, caused injury to property owners upon the shores by the flowage of their lands." Some of them subsequently brought suits therefor, and received compensation through an adjustment made with them by the defendants involving the "acknowledgment of liability." "In 1859 one Gardner made claim for flowage. The corporation authorized the settlement of his claim. Aside from the records of the corporation In 1861, in which there was a recognition that other claims had been before made and adjusted, and occasional complaints which took no tangible form, there was no other complaint, or evidence of complaint, of the...

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