Swain v. Pemigewasset Power Co.

• Decision Date: 06 November 1912
• Parties: SWAIN v. PEMIGEWASSET POWER CO.
• Court: New Hampshire Supreme Court

85 A. 288

76 N.H. 498

SWAIN

v. PEMIGEWASSET POWER CO.

Supreme Court of New Hampshire. Merrimack.

Nov. 6, 1912.

Transferred from Superior Court, Merrimack County; Pike, Judge.

Petition by Mary A. Swain against the Pemigewasset Power Company for assessment of damages under the Flowage Act. Transferred from the superior court without a ruling on a demurrer. Case discharged.

The question raised by the demurrer is whether the plaintiff may recover damages for the flowing out or taking of the head or falls of the stream located upon her land, but which she has neither utilized nor developed.

George W. Stone, of Andover, and Martin & Howe, of Concord, for plaintiff.

Niles & Upton and Remick & Jackson, all of Concord, for defendant.

WALKER, J. The rights of riparian owners at common law to a beneficial use of the water of the river or stream passing through or adjacent to their lands are not open to serious doubt. They are entitled to a reasonable usufruct of the water, or of the power it is capable of developing in consequence of the natural configuration of the bed of the stream opposite their respective lands. If at that place there is such a fall in the flow of the stream that it is capable of being utilized for the development of mechanical power by the erection of a dam and the usual appliances used in connection therewith, the riparian owner has a valuable interest in that natural condition of the stream, which is incident to his ownership of the land, extending ordinarily to the thread of the stream.

In the absence of the mill act, the doctrine of the recent case of Electric Light Co. T. Jones, 75 N. H. 172, 71 Atl. 871, would seem to establish the proposition that he would be entitled to maintain an action for damages caused by the defendant's wrongful appropriation of his water power. In that case it was held that a millowner who wrongfully flows back the water of a stream, and thereby obtains the use of power to which a proprietor above him is entitled, is liable to the latter for the fair rental value of the power so taken and used, although the latter was not using the power opposite his land and had no intention of doing so. The capacity of the land, in connection with a reasonable use of the water flowing over it, to generate power upon his premises, was deemed to constitute a valuable right which he could not be wrongfully deprived of without suffering substantial damage, for the recovery of which an action would lie against the wrongdoer. That this conclusion is a sound one is evident both upon principle and authority. Cowles v. Kidder, 24 N. H. 364, 57 Am. Dec. 287; Wilder v. Clough, 55 N. H. 359; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 19, 25 Atl. 718, 18 L. R. A. 679; Winnipiseogee, etc., Co. v. Gilford, 67 N. H. 514, 35 Atl. 945; State v. Mfg. Co., 76 N. H. 373, 376, 83 Atl. 126.

As at common law the defendant would be liable for the damages caused by its setting back the water of the river and retarding its flow over the plaintiff's land, the question arises whether the statute known as the Flowage Act, originally passed in 1868 (Laws 1868, c. 20; P. S. c. 142, §§ 1217), has rendered such loss damnum absque injuria, when the act of retarding the flow of the water is no longer wrongful, but authorized by the statute for the promotion of manufacturing establishments. It is unnecessary to say that this is a question of legislative intention. Does the language of the act, legally interpreted, justify or require such a conclusion? Section 12, c. 142, Public Statutes, provides that "any person or corporation authorized by its charter so to do may erect and maintain on his or its land, or upon land of another with his consent, a water mill, and a dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same, to its use, and to the use of the mills below, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed." Section 13 is as follows: "If the land of any person shall be overflowed, drained, or otherwise injured by the use of such dam, and the damage or injury shall not, within thirty days after due notice thereof, be satisfactorily adjusted by the party erecting or maintaining the dam, either party may apply by petition to the Supreme [superior] Court * * * to have the damage that may have been or may be done thereby assessed." It is conceded that the defendant caused the water of the river to flow back in the exercise of the power conferred by section 12, and that any damages it is compelled to pay the plaintiff therefor, if any, are those contemplated in section 13. Dolbeer v. Water Works Co., 72 N. H. 502, 563, 58 Atl. 504. If the plaintiff's "land" has been "injured by the use" of the defendant's dam, the defendant's demurrer should be overruled, and the damages should be assessed.

If it is assumed that the damages provided for in the statute are confined to injuries to "the land," there is no purpose apparent in the statute to still further limit them to injuries which render the land less capable of cultivation or of physical occupation. "Land" is not used in a narrow or specially restrictive sense in the statute. It applies not merely to land as distinguished from water, but to laud with all that is incidentally appurtenant to the full exercise of ownership. If the land is adapted by nature to some special or peculiar use, ownership of the land includes the right to devote it to that use. The damages the Legislature had in mind were such as result from depriving the landowner of the ability to use his land to the best advantage in view of its location and natural adaptability. The plaintiff's right of landed ownership was as much infringed and appropriated by the defendant, who deprived her of the use of the water of the...