186 Mass. 552 | Mass. | 1904
This was a petition to recover damages for the taking of the waters of Kettle Brook, under the St. 1895, c. 384. The taking included all the waters of the brook at the petitioner’s woollen factory, and above it, together with the factory itself, the dam, the pond and lands around it, and certain lands of other parties. The petitioner and the respondent agreed to divide the damages into two parts for the purpose
The important question is how the exception in the submission which defines the petitionei’’s present claim is to be construed in its application to certain facts. This claim is for “damages incidental to the use and value of the waters of said Kettle Brook for purposes of power, including any unoccupied fall or power that may be damaged by said taking. ” The claim formerly considered was for all other damages caused by this taking. There is nothing in the record to show that damages were claimed by the petitioner for any injury to property which was not taken, and it would seem, therefore, that the intention was to divide the value of all that was taken into two parts, and to have the value of the use of the waters for the purposes of power assessed in one sum, and the value of everything else that was taken assessed in another sum. Of course the value of each part was to be assessed in reference to the fact that, at the time of the taking, it was connected and used with the other. If either part had been taken without taking the other, the claim for damages would have been not only for the fair value of the part taken, but also for the injury to that which was left, by reason of the taking of that which was essential to its profitable use. In that case, the damage for injury to that which was left would be incidental, in a sense, to the taking of the other part. If the use of the water and nothing else was taken, the dam and water wheel and the rights of flowage over lands of other persons would become of little value, and the mill and the machinery would be greatly
Another question grows out of the fact t-hat, at various points on the stream above the petitioner’s mill, reservoirs had been constructed and used by riparian proprietors, in a reasonable way, and in the exercise of their rights as such proprietors, to hold back the water and equalize and increase the power at their mills. Several of these had been in existence for many years, and the use of them, over which the petitioner exercised no control, materially increased the power at its mill. The petitioner contended that it had a legal right to have these reservoirs continued and used as they had been used; but the respondent contended and the judge ruled that the petitioner had acquired and could acquire no prescriptive rights to have the reservoirs maintained and used as the owners of them had been accustomed to use them, and that the value of its power must be determined in reference to this fact. This was plainly correct, and the exceptions founded upon an assumption to the contrary must be overruled. Thurber v. Martin, 2 Gray, 394. Gould v. Boston Duck Co. 13 Gray, 442. Springfield v. Harris, 4 Allen, 494. Vliet v. Sherwood, 35 Wis. 229. Crawford Co. v. Hall, 60 L. R. A. 889, 909. The judge, however, instructed the
The first request for instructions was that the petitioner’s right to use and maintain its dam and its flowage rights was not included in the former submission, and that the damages for the taking of these rights were to be assessed in this suit. This is covered by-the first proposition which we have stated as to the construction of the agreement of submission. These flowage rights were rights in the lands of others, conveyed by deeds. They and the dam and the right to maintain it were parts of the property which were to be considered and paid for under the first reference.
The second and third requests were, that if the substitution of steam power for water power was an economical and proper mode of repairing the damage at the privilege, d.ue to the taking of the water, and if the use of the mill privilege for manufacturing pui’poses, with steam power substituted for the water power taken, would, after the taking, have been a reasonable and proper mode of using the property to obtain the best
A separate and independent answer to the request is that, because of expensive buildings and machinery upon the property, adapted to the manufacture of a particular kind of goods, which would be of little value without power, it might be economical, if the power was taken and the remainder left, to procure another kind of power, even at a great expense, rather than to suffer a heavy loss on the mill and the machinery. In such a case the great cost of the new kind of power would represent, not the fair value of the power, taken as a part of the whole property, on the basis of its proportional part of the value of the whole, but it would represent the value of the power taken, together with an additional sum made necessary on account of the damage which would otherwise come to the property which was left. As no property was left in this case, such damage is not to be 'assessed in determining the damage for taking the power.
For the same reason, it would have been erroneous for the judge to give the ninth instruction requested. In the case supposed the assessment suggested in the request would have given the value of the property taken, with an additional sum for the damage to the remaining property.
The fourth, fifth, sixth and seventh requests for rulings are all founded upon the contention that the petitioner was entitled to have the reservoirs, on the stream above, managed and used in the future as they had been in the past, which, as we have already said, was erroneous.
The eighth request was that upon all the facts of the case,
The remaining exceptions are to the exclusion of evidence. The award of Ball and Buttrick and the use of the water in accordance with it had reference to a reservoir below the petitioner’s mill, which received a part of its water from a watershed which did not supply the petitioner’s pond. It was rightly excluded, as being too remote to be of assistance to the jury.
The petitioner inquired of one Allen if he had computed the amount of power that could be developed by the petitioner’s plant, taking into account the natural flow of the watershed, as regulated by the several reservoirs, etc., and asked what would be the average daily yield in horse power from that shed, including the reservoirs. The form of the questions as to what “ could be developed,” and what would be the “average daily yield,” indicates that the question was put under the petitioner’s contention that it had a right to control the future use of the reservoirs, in accordance with the manner of their former use, in the development of its power, which, as we have said, was erroneous. The average daily yield, including times of the highest water and of the lowest, would not fairly represent the usual available power. A witness testified that “ at certain seasons of the year a very large volume of water would come down over the watershed, a very much larger volume of water than at other seasons of the year, and when the pond was filled so it would run over the flash boards they would put on full gate
The witness Hill was a mechanical engineer of large experience, especially in connection with steam engines and the production of power by steam. He testified that he had made tests of the engines at the petitioner’s mill before the water was taken. It did not appear that he had any knowledge of values in that neighborhood, except that of a mechanical engineer. He was asked to state, from his knowledge of the cost of producing horse power in that locality and in other localities, what was the value of power there per.horse power. The question was excluded, but he was permitted to give the cost of producing it. The witness Tolman had been a partner of the last witness, and was a mechanical engineer who testified to á large experience with steam power. It did not appear that he had any knowledge of the value of power in the vicinity of the petitioner’s mill, except that derived from his knowledge of the cost of producing it. He was asked the market value of power per horse power at the petitioner’s mill previous to the taking, and the question was excluded. He was permitted to testify as to the cost of producing power at that place by steam or any other method. The witnesses Allen and Shedd were experts in hydraulic engineering, and in that capacity were familiar with the cost and value of water power and steam power; but it did not appear that either of them had any knowledge of the value of real estate in the town of Leicester, where the petitioner’s mill was situated, or elsewhere, or that they knew of any sales of power apart from land. These witnesses were asked to give an opinion as to the value of the waters of Kettle Brook, and as to the damage to the petitioner’s property caused by the taking of the water. For the reasons stated in Conness v. Commonwealth, 184 Mass. 541, it was within the discretion of the presiding judge to exclude these questions to the several witnesses; and so far as appears, the discretion was properly exercised. The
The witness Olney was called to testify generally as to the damages in question; but he said his opinion was founded wholly on the value of his own plant, which was a mill farther down the stream, and that he arrived at the value of that from an offer which had been made for it. The judge might well find that he was not an expert in the value of real estate, or qualified to give the opinion asked for.
What it would cost to reproduce the dam was immaterial to the inquiry before the court. The dam, the land under the pond and the flowage rights in the lands of others, were a part of the property for which damages were to be assessed in the former reference. The use of the water for power, with any unoccupied fall that might be damaged, was the only property to be paid for by this assessment. For this reason the petitioner’s evidence of a special value in the water for washing and scouring was also rightly excluded.
The question to the trustee of a savings bank as to the rate of interest at which money could be invested safely for a long term of years was too remote to be of assistance. The percentage of income that can be obtained from investments changes from time to time, as everybody knows, and the inquiry as to an
No error is shown in the exclusion of the testimony of the witness Ely as to the value of power in the city of Worcester. It does not appear that the value of power in the small town where the petitioner’s mill was situated was the same as its value in the city of Worcester.
Exceptions overruled.
The petitioner argued, that this evidence was admissible to show the jury what rate of interest they ought to use in computing the principal sum which would yield an annual income equal to the annual cost of replacing the water power by steam.