Wamesit Power Co. v. Allen
| Decision Date | 06 May 1876 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Wamesit Power Company v. Charles H. Allen & others |
Middlesex. Tort for diverting the water of Sudbury River into Cochituate Lake in 1872, by the defendants, then the members of the Cochituate Water Board of the city of Boston. Writ dated November 20, 1873.
Trial in this court, before Morton, J., without a jury, who reported the case for the consideration of the full court. The facts appear in the opinion.
Judgment for the plaintiff.
B. F Butler & L. M. Child, for the plaintiff.
D. E Ware, for the defendants.
This is an action of tort to recover damages for the diversion of the water of Sudbury River, to the injury of the plaintiff. The defendants were the members of the Cochituate Water Board of the city of Boston for the year 1872.
To prove the diversion and its extent, the plaintiff put in evidence the report of the water board to the city council of Boston, for the year ending April 30, 1873, signed by all the defendants, by which it appeared that the board, having previously constructed an aqueduct or channel, on June 19, 1872, let the water of the Sudbury River into it, and diverted large quantities to Lake Cochituate between said June 19 and September 17, 1872, when the channel was closed, and has not since been used. The defendants admitted this taking and diversion of the water, and justified their acts under the St. of 1872, c. 177.
The first section of the St. of 1872 provides that "the city of Boston is hereby authorized, by and through the agency of the Cochituate Water Board, to take, hold and convey to, into and through said city" the water of Sudbury River. The fifth section provides that the city shall be liable to pay all damages sustained by any persons by the taking of or injury to any land, water or water rights, or injury to any use or enjoyment of the water to which any person, at the time of such taking, is legally entitled; and that in regard to such taking, injury and damages, the city and all persons claiming damages shall have all the rights and be subject to all the duties provided in the St. of 1846, c. 167.
The St. of 1846, in its first section, authorizes the city of Boston, through the agency of three commissioners, to take and convey into the city the waters of Long Pond and other ponds and streams, and to take any lands necessary for aqueducts and reservoirs, and provides that "the city of Boston shall, within sixty days fro the time they shall take any lands or ponds or streams of water for the purposes of this act, file, in the office of the registry of deeds for the county where they are situate, a description of the lands, ponds or streams of water so taken, as certain as is required in a common conveyance of lands, and a statement of the purpose for which taken, which said description and statement shall be signed by the said mayor." The sixth and eighth sections provide an exclusive remedy for any person injured by the taking of land, water or water rights, by a petition to the Court of Common Pleas, to be brought within three years from the taking of land, or, where water rights are taken, within three years from the time when the waters are actually withdrawn or diverted under the authority of the act.
The defendants contend that, under these provisions of the statutes, the only remedy of the plaintiff is by a...
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