186 Mass. 89 | Mass. | 1904
The plaintiff, a riparian proprietor upon the Chicopee River, has lately built across the stream a dam nineteen and twenty-nine one hundredths feet high and three hundred and fifty-three feet long, with a length upon the roll-way of two hundred and ten feet. Its expenditure for this development of pow’er was $271,000. The water power is used to generate electricity, which is conducted about three quarters of a mile up the stream to the plaintiff’s factory at Three Rivers in Palmer, and there applied to the plaintiff’s motors. This factory previously had been run in part by water power taken from the river further up, and in part by steam power.
The first mentioned defendant, the Ludlow Manufacturing Company, which will hereinafter be called the defendant, is also a riparian proprietor upon the river, and at a point two miles below the plaintiff’s dam, it has lately built a dam whose height is fifty-one feet, whose length is eight hundred and eighty feet, and the length of whose rollway is three hundred feet. The defendant’s expenditure for this development of power was $800,000. This dam was built to enable the defendant to generate electricity to be conducted about four miles down the stream to furnish additional power for use at the defendant’s old factories and at a new one in Ludlow. The defendant’s dam sets back water upon the plaintiff’s dam in such a way as very greatly to diminish the water power there, and this bill is brought to enjoin the defendant from maintaining the dam and setting back the water.
The defendant became the owner in fee, in 1891, of certain land which includes the site of this present dam and the accompanying structures. In 1894, and again in 1898, it employed an engineer to take levels and make surveys, plans and soundings along and upon the property, for the purpose of determining whether or not it was practicable to erect a mill dam upon the site of the dam since completed, and he did the work for which
On the fourth day of April, 1900, the plaintiff determined to build a dam at the site of its present dam, and then began its preparatory work therefor, and prosecuted this work with due diligence until the eleventh day of August, 1900, when it began the work of excavating for the foundations of its dam, and from this latter date it continuously prosecuted the work of construction with due diligence to the completion within a reasonable time of its dam and all appurtenances necessary for the utilization of the power. This work was completed on July 1, 1901.
Each part of the work of building its dam, the preliminary, the preparatory and the permanent work, was begun by the de
The principal question in the case is, What is the construction of the mill act as applied to these facts? The Pub. Sts. c. 190, § 2 (R. L. c. 196, § 2) is as follows: “No such dam shall be erected to the injury of a mill lawfully existing, either above or below it, on the same stream, nor to the injury of a mill-site on the same stream on which a mill or mill-dam has been lawfully erected and used, unless the right to maintain a mill on such last mentioned site has been lost or defeated by abandonment or otherwise; nor shall a mill-dam be hereafter erected or raised to the injury of any such mill-site which has been occupied as such by the owner thereof, if such owner within a reasonable time after commencing such occupation completes and puts in operation a mill for the working of which the water of such stream is applied,” etc.
The plaintiff contends that the defendant has violated that part of the statute which forbids the erection of a dam to the injury of an existing mill site on which a mill dam has been lawfully erected; and the defendant contends that the erection of the plaintiff’s dam was a violation of that part of the statute which forbids the erection of a mill dam to the injury of a mill site which has been occupied by the owner thereof, when the owner, within a reasonable time after commencing such occupation, completes and puts in operation a mill, for the working of which the water of such stream is applied.
The statute was enacted for the regulation of the rights of property owners upon streams adapted to use for the supply of' power. The framers of it recognized the fact that such property, in many cases, could not be used profitably by an owner for a short distance along the stream, without affecting the property of other owners above and below, and preventing a like use of the stream for mill sites on other land. An enforcement by riparian proprietors of their rights at common law would often make it impossible for any of them to use water power effectively. Therefore, their personal interests, as well as the interests of the public, call for legislation modifying the common law, and regulating the rights of owners of this peculiar
The plaintiff contends that the language of the statute, on which the defendant relies, applies only to owners on the stream, below, and forbids their building a dam to the injury of an upper proprietor who has appropriated the power by beginning to build a dam which he completes within a reasonable time, and uses in connection with a mill, and that it does not apply to an owner on the stream above, who completes a dam, and seeks to have it remain with the outflow from the tail race undisturbed by back water from the dam of one who, in like manner, had previously appropriated the power at a point below. We are of opinion that this would be too narrow a construction of the provision. The building of a dam by an upper proprietor, for which he claims the common, law right of a riparian owner to have the water flow down the stream without obstruction, would, if the claim were valid, be a great injury to the property of a proprietor below who had previously appropriated the power, but had been unable to complete his dam as soon as the upper dam was completed. In such a case, if the upper dam were protected as lawfully built under the mill act, in reference to a right to have the water flow freely away from it for the creation of power, the injury would be as great as it would be if a dam were built below which set back water upon a previously appropriated mill site aboye. The result would be that which is sought by the plaintiff in the present case, namely, a requirement that the dam below should be lowered so as not to set back water upon the upper mill. The reason for the enactment of the statute seems to require us to hold it applicable to a proper appropriation of water power in a stream, whether above or below the place where another subsequently begins to build, with the hope of preceding the other in the completion of his work.
The plaintiff contends thakthe statute so construed is unconstitutional. We do not deem it necessary to consider at length the constitutionality of this statute. It has often been considered and discussed in previous decisions, and it has uniformly been affirmed. It is urged that the provision for the payment of damages is inadequate. This argument is founded mainly on an assumption that there is a taking of property under the right of eminent domain; but whatever may be the interference with the use of neighboring property by an" appropriation of a mill site, it is not a taking under the right of eminent domain. Murdock v. Stickney, 8 Cush. 113. Hazen v. Essex Co. 12 Cush. 475. Lowell v. Boston, 111 Mass. 454, 464. Turner v. Nye, 154 Mass. 579. Head v. Amoskeag Manuf. Co. 113 U. S. 9. It is unnecessary to determine, in this case, what constitutional rights one has, in reference to damages for an interference under statutory authority with his right at common law to use the water of a stream without obstruction, where such interference is permitted in the regulation of the rights of different owners, as necessary to an advantageous use of the power ; nor is it important 'now to decide what principles will hereafter be applied in assessing the damages of the present plaintiff, in view of existing conditions. It is enough to say that in our opinion the provision for compensation for damages is adequate to meet such constitutional requirements as are applicable to a statute of this kind. Even in cases arising under statutes which authorize an exercise of the right of eminent domain, it has been held that similar provisions are sufficient to satisfy the language of the constitution. Boston & Roxbury Mill Co. v. Newman, 12 Pick. 467. Brickett v. Haverhill Aqueduct Co. 142 Mass. 394.
The plaintiff contends that the defendant was precluded from erecting a dam which would interfere with the right to use water power secured to the plaintiff, as between it and one Metcalf, by a parol contract in writing with Metcalf, made on September 26, 1882, but not recorded. This agreement was made in connection with a proposed conveyance from Metcalf to the plaintiff of
We need not determine the effect of this contract in all particulars, for if we should assume in favor of the plaintiff that it was not merely a personal contract with Metcalf, but one which binds subsequent purchasers of his land who take with notice of it, we are of opinion that it is of no effect in the present case. It was an agreement made in reference to the use of the lands then owned by the respective parties, and of those which would come to them subsequently through the proposed conveyances. If a purchaser of either lot, with notice of the agreement, would be bound not to use it in violation of the agreement, it does not follow that such a purchaser would be deprived of his right to use other lands which he might chance to own in any lawful way. The land on which the defendant’s dam was erected is nearly two miles further down the stream than the land which Metcalf owned, to which the agreement pertains. The dam was erected under the mill act, by virtue of the defendant’s right as a riparian proprietor at the point where the mill site was established. The agreement was either a mere personal contract of Metcalf, or it was a contract connected with his land, which, in equity, would follow the land' in the possession of a subsequent owner who took it with notice. If it follows the land, it has no effect upon the rights of the defendant as the owner of other land below. The ruling of the master on this part of the case was right.
Bill dismissed with costs.