Turner v. Nye

• Decision Date: 11 November 1891
• Citation: 154 Mass. 579,28 N.E. 1048
• Parties: TURNER v. NYE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 579

28 N.E. 1048

TURNER v. NYE et al.

Supreme Judicial Court of Massachusetts, Barnstable.

November 11, 1891

COUNSEL

A.M. Goodspeed, for appellant.

O.A Prince and J.M. Hall, for appellees.

OPINION

MORTON J.

The plaintiff does not rely upon the fact that the dam was partially constructed by the defendant before the passage of chapter 383, St.1889. The plaintiff could not avail himself of that fact in this suit. If the dam is maintainable under that statute, the plaintiff would not be entitled to its abatement, although it was partly erected without right, ( Ware v. Canal Co., 3 De Gex. & J. 212;) and if he is entitled to damages for the technical violation of his rights, his remedy is at law, (Washburn v. Miller, 117 Mass. 376.) Nor does he rely upon the point suggested by the defendant, that the operation of the act is confined, as it clearly may be, to Barnstable county. Cooley, Const.Lim. (3d Ed.) *390. The plaintiff claims that the statute of 1889, c. 383, under which the court found that the dam was completed and is maintained by the defendant, is unconstitutional, because (1) it purports to authorize the taking of private property for a use which is not public in its nature; and, (2) if the statute is constitutional, the defendant has not brought himself within it. But in regard to the first point we think the plaintiff misapprehends the constitutional provision which applies to the act in question. The statute was not an exercise on the part of the legislature of the right of eminent domain, but was enacted under the provision which gives it power to "make ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, *** so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth and for the government and ordering thereof and of the subjects of the same." Const.Mass. pt. 2, c. 1, art. 4. It is upon this provision that the mill acts have been placed finally in this state after what appear at times to have been somewhat conflicting views. Talbot v. Hudson, 16 Gray, 417; Mill Corp. v. Newman, 12 Pick. 467; Murdock v. Stickney, 8 Cush. 113; Hazen v. Essex Co., 12 Cush. 475; Lowell v. Boston, 111 Mass. 454. It may be doubted whether as new legislation they could be sustained as an exercise of the right of eminent domain. Murdock v. Stickney, Lowell v. Boston, ubi supra; Cooley, Const.Lim. (3d Ed.) 534; Jordan v. Woodward, 40 Me. 317. Upon this provision also stand the "Cranberry Act," so called, (St.1866, c. 206;) the act in regard to draining meadows, swamps, marshes, beaches, and lowlands, with its authority to commissioners to open the flood-gates of a mill, or erect a temporary dam on the lands of another person, and to assess the damages upon the proprietors, (Pub.St. c. 189;) the act in regard to proprietors of wharves, general fields, and lands lying in common, with the control which it gives to a certain proportion in number and interest over the property of the rest, (Pub.St. c. 111;) and the act in regard to partition, by which one co-tenant may be compelled to take money instead of land, or to give up for a time the occupation and enjoyment to another, (Pub.St. c. 178.) The mill act and these and other like statutes--of which various illustrations might be given, (Wurts v. Hoagland, 114 U.S. 606, 5 S.Ct. 1086)--rest upon the principle that property may be so situated or of such a character that the absolute right of the individual owner to a certain extent must yield to or be modified by corresponding rights on the part of other owners, or by what is deemed on the whole to be for the public welfare. See Com. v. Alger, 7 Cush. 53; Denham v. Commissioners, 108 Mass. 202; Com. v. Tewksbury, 11 Metc. (Mass.) 55. The provision above quoted does not authorize the legislature to take property from one person and give it to another, nor to take private property for public uses without compensation, nor to wantonly interfere with private rights. These are always to be carefully guarded and protected. But of necessity cases will arise where there will or may be a conflict of interests in the use or disposition of property, and questions may and will come up affecting the public welfare in regard to the use which shall or shall not be permitted of certain property. It is for the legislature in such instances, under the power thus conferred upon it, and with due regard to private rights, to enact the necessary laws. It is for the public good that swamps and waste lands should be reclaimed and made productive. It is also for the public good that streams should be used to operate mills, to raise cranberries, and to cultivate useful fishes. If private rights appear to some extent to be invaded, that is inseparable from the nature of the use authorized, without which the streams could not be advantageously or profitably used, and compensation is provided for any injury that may be done. The character of the property and the resulting general good are deemed sufficient to justify the action of the legislature. It is doubtful, however, whether any property of the plaintiff is taken, or any of his rights are invaded.

The statute in question authorizes the erection and maintenance of a dam across any stream for the purpose of creating or raising a pond for the culture of useful fishes. It is to be erected "upon the terms and conditions and subject to the regulations contained in chapter 190 of the Public Statutes, so far as the same are properly applicable in such cases." The chaper referred to is what is known as the "Mill Act." Under that it has been held that the right to erect and maintain a dam to raise water for working a mill does not give to the mill-owner any right in the land flowed, or take away any right from the land-owner. The latter may embank his land, and thus stop any flowage of it or, if he chooses, he may collect of the mill-owner damages in gross or annually for the flowage. Until the land-owner manifests his election to claim damages he cannot be compelled by the mill-owner to submit his land to be flowed, and until then the only right which the mill-owner has as between himself and the land-owner is to maintain his dam without liability to the land-owner for damages in an action at law. While the land-owner may protect his land from flowage, he cannot, of course, wantonly interfere with the right which the statute gives to the mill-owner to maintain his dam. Williams v. Nelson, 23 Pick. 141; Murdock v. Stickney, supra; Storm v. Manchaug Co., 13 Allen, 10; Lowell v. Boston, supra; Paine v. Woods, 108 Mass. 163; Head v. Manufacturing Co., 113 U.S. 9, 5 S.Ct. 441. There would seem to be nothing in the purpose for which the right is given to erect and maintain a dam to create a pond for the culture of useful fishes that should give to the party erecting or maintaining such a dam any greater rights over the lands flowed by it than a mill-owner would have over lands flowed by the dam maintained by him. Without anything more, we should be slow to infer from a power to maintain a dam to create a pond for the culture of useful fishes any greater rights over lands flowed than from a power to maintain a dam to raise water for working a mill. It appears from the facts found in the present case that the defendant's dam flows about 60...