218 Mass. 220 | Mass. | 1914
The defendant city acquired this land by a taking thereof made under St. 1892, c. 421, § 1. By that act the defendant was authorized to “take and hold, by purchase or otherwise, . . . any land, rights of way,, easements and real estate necessary for constructing, maintaining and protecting a distributing reservoir, and also whatever may be necessary for laying, constructing, maintaining and protecting suitable aqueducts, pipes, water courses and other works to convey water, from Fresh Pond in Cambridge and from Stony Brook in Waltham and Weston, into such distributing reservoir and out of the same into and through said city of Cambridge.” Under this authority the defendant by proper instruments, duly recorded, took the land, describing it particularly “for a distributing reservoir.” It since has taken from the former owners deeds of the land in fee.
Through a part of this land and out of it there ran a natural stream of water through and into the land of the plaintiff corporation (hereinafter called the plaintiff), which was of value to it. The defendant built a distributing reservoir upon the land. This was so constructed that water leaked from it and ran into the stream, considerably increasing the flow of water therein. The defendant desired to stop this waste of its water, and for that purpose, and in order also to gather into the reservoir the underground waters of its land, did the acts found and reported by the' master, and threatens to continue and carry them out to such an extent as not only to take away the increased flow caused by the leakage from its reservoir (of which the plaintiff could not complain), but greatly to diminish or even to destroy the natural flow
The defendant must be held liable for this practical destruction of a natural stream to the injury of a lower proprietor, unless there is some justification for its acts.
The defendant contends that by its taking and the deeds which it has taken from the former owners it has acquired full title to the land, and has the right to intercept the water percolating through the soil of its property, although those waters otherwise would run into the stream, and although the effect of this may be to diminish the flow of the stream so as to render it useless to a lower proprietor, and that upon the findings of the master it has done no more than this.
We need not consider whether an upper riparian proprietor can intercept the underground waters flowing by mere percolation and not in any defined channel into a natural stream, to such an extent as materially to diminish the natural flow of that stream to the injury of the lower proprietors. The decisions as to this have not been wholly in accord. See Smith v. Brooklyn, 18 App. Div. (N. Y.) 340 and 160 N. Y. 357; Dickinson v. Grand Junction Canal Co. 7 Exch. 282; Broadbent v. Ramsbothom, 11 Exch. 602; Chasemore v. Richards, 7 H. L. Cas. 349. The defendant has not the rights of an ordinary proprietor. It had authority to take the land, only for the construction of a distributing reservoir. It took no water rights whatever. It acquired no right, as against owners upon the stream, to appropriate the underground water, or to diminish the natural flow of the stream or lessen the volume of water therein, at least so far as this was not necessarily incidental to the proper construction and use of its reservoir and the pipes leading into or out of the same. Hart v. Jamaica Pond Aqueduct, 133 Mass. 488, 489. In Cowdrey v. Woburn, 136 Mass. 409, 411, the respondent was held liable, not only for water taken from the petitioner’s pond by percolation through an embankment, but for water which the respondent had intercepted by wells and thus prevented from flowing into the pond, as otherwise it would have done. The court said: “The town of Woburn does not stand in the same position as an ordinary landowner. All its powers in the
It is not material that the defendant has acquired title to the land by deeds from the former owners thereof. Its power to purchase, like its power to take, comes only from the statute. This also was decided in Cowdrey v. Woburn, ubi supra. To the same effect see Hollingsworth & Vose Co. v. Foxborough Water Supply District, 165 Mass. 186; Ætna Mills v. Brookline, 127 Mass. 69, 72.
The plaintiff’s remedy could not have been by a petition for the assessment of the damages occasioned by the defendant’s taking and its subsequent acts. As we have seen, the defendant had not taken these water rights. Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361. Lexington Print Works v. Canton, 167 Mass. 341, 344. Smith v. Stoughton, 185 Mass. 329, 333.
The defendant is not helped by the case of Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365, 373. In that case, land which included two swamps had been taken, among other purposes, "for forming and erecting dams, reservoirs, to take and hold water.” The swamps had been dug out, their outlets dammed, and a reservoir constructed, “to take and hold water.” It was held that there had been a valid taking of all the water which gathered in the reservoir from springs or by percolation. In the case at bar, nothing was taken but land for “a distributing reservoir,” into which was to be brought water from two specified sources, and from which it was to be carried into the defendant city. The distinction is obvious, and there is no need of enlarging upon it.
None of the defendant’s exceptions to the master’s report can be sustained. We cannot review those which relate to findings of fact, because the evidence is not reported. Those which relate to rulings upon the effect of those facts are not open. Cook v. Scheffreen, 215 Mass. 444. But the defendant practically has had the benefit of them, in passing upon the questions of law presented to us. So far as these exceptions are material, they are covered by what has been said.
A decree will be entered for the plaintiff in the form annexed to the report, but modified by adding the costs in this court.
So ordered.