157 Mass. 345 | Mass. | 1892
These were petitions under the St. of 1885, c. 217, § 4, for the assessment of damages resulting from the joint taking by the respondents of all the water of Great Pond, lying partly in the town of Braintree and partly in the town of Randolph. The petitions were tried together before the same jury. It appears that, at the trial, two of the respondents asked the court to rule “ that the petitioners, in the aggregate, were enti-'
The respondents asked the court to rule “ that, if any of these petitioners could recover against the respondents, it was the petitioner corporation, the Proprietors of Mills on Monatiquot River, and it alone ” ; and they further asked the court to rule “that if the petitioners, the mill-owners below, could recover for the loss of any of the water of the pond, it could only be for the overflow in excess of the storage capacity, as fixed by the act of 1818, and by the dam erected by virtue of that act.” Both these rulings the court refused to give, and it instructed the jury upon the rights of the petitioning corporation and of the mill-owners on the stream to recover damages in accordance with the rule laid down in Watuppa Reservoir v. Fall River, 134 Mass. 267.
The act of 1818 referred to is the St. of 1818, c. 35, entitled, “ An act to incorporate the Proprietors of Mills on Monatiquot River, in Braintree.” The exceptions recite that this corporation “ owned a dam which held up and regulated the waters of Great Pond, and certain land and flowage rights used in connection therewith, at or near the border of said pond, which dam and land and flowage rights, acquired by and belonging to the said corporation, were taken by the respondents under said act of 1885, but this corporation itself owned no mill, and carried on no industry, and had never issued any stock. The other petitioners were owners of several mill sites below, on the Monatiquot River, which is the outlet of said Great Pond to the sea. The cases were first heard by a board of three auditors, who found, among other things not material to this bill, that all the petitioners owners of mill sites on the stream below, with the exception of James T. Stevens and another, were members of the petitioner corporation, . . . and that the said corporation, for at least sixty years last passed, had always drawn and let down' the stored water for the best convenience of the mill-owners members thereof on the stream below.”
We are, however, of opinion that the differences suggested are not sufficient to take the present cases out of the rule of damages laid down in Watuppa Reservoir v. Fall River. See Proprietors of Mills on Monatiquot River v. Braintree Water Supply Co. 149 Mass. 478. The St. of 1818, c. 35, is not
The St." of 1885, c. 217, § 4, provides: “ The said towns, or such of them as act jointly, shall jointly pay all damages sustained by any person or corporation, in property, by the joint taking of any land, right of way, water, water source, water right or easement, or by any other thing done by said towns, or such of them as act jointly, under the authority of this act.” This provision is. ample, and we think the court rightly ruled that the corporation of the Proprietors of Mills on Monatiquot River was entitled to recover the market value of its dam, land, and flowage rights which were taken, as property distinct from the right to use the water of the river, which belonged to the mill-owners on the stream, and that the mill-owners could also recover for the injury to their estates in being deprived of the use of a part of the water of the stream by the taking of the respondents.
The' respondents also asked the court to rule “that none of the petitioners, the mill-owners below, were members of the corporation chartered by said act [St. 1818, c. 35], and that they could not recover for damages occasioned by the taking of the waters of the pond.” The exception to the refusal to give this ruling was waived at the argument. The auditors had found as a fact that the mill-owners, with the exception of James T. Stevens and another, were in fact members of this corporation, and the question whether they could recover damages or not was included in the previous requests.
The exceptions recite that “ the respondents offered to prove that a certain amount of the waters used by the respondents in the exercise of the powers given them by chapter 217 of the acts of the year 1885, would necessarily be returned by percolation, after use, to the water-shed of the river below said Great
The respondents cite Mannville Co. v. Worcester, 138 Mass. 89. In that case, as appears more fully from the original papers, “by means of a sewer system which emptied into Mill Brook, another natural stream which also emptied into Blackstone River within the limits of said city, a portion of said water,” that is, of the water withdrawn, “ was returned to said river. . . . The defendant claimed that the percentage of the water pumped, which returned to the river through said system of sewers, should be deducted from the amount pumped in arriving at the amount of water for the diversion of which the city was responsible, and introduced some evidence, against the plaintiff’s objection, tending to show what this percentage was.” That was an action of tort, in which the plaintiff was entitled to recover damages for the diversion of the water up to the date of the writ. The water diverted was used by the inhabitants of the city of Worcester, and a part of it was, after being used, emptied through the sewers back into the stream, a long distance above the mill of the plaintiff. The amount of water actually diverted from the plaintiff’s mill for six years before the date of the writ, and the legal damages suffered therefrom, were the questions before the court, and it did not appear that there was any difficulty in ascertaining this amount of water, and this court held that, “ so far as the water was returned, its withdrawal was no wrong to the plaintiff.”
In the present cases the respondents took all the water of Great Pond, and the damages to be assessed are not the actual damages suffered by the petitioners up to the date of filing the petitions, but alb the damages that will arise in the future, as well as those that have arisen in the past. Notwithstanding the terms in which the offer of the respondents was made, and if we assume that the amount returned to Monatiquot River in the past could be reasonably ascertained, yet the amount that would be returned in the future is necessarily dependent upon many things which cannot now be accurately predicted. Systems of sewers may
In Howe v. Weymouth, 148 Mass. 605, the town of Weymouth took all the water of Weymouth Great Pond, and evidence was admitted in the Superior Court of estimates of the quantity of water which in the future would be diverted, based upon the actual population of Weymouth, the ratio of the increase of population in the past, the quantity of water which had in fact been used during the year before the trial, and the average quantity used by each defendant in several cities where a record had been kept. This court held that the evidence was improperly admitted, because it tended to show only a probability that the town would “ not exercise in full the right it has taken.” The court was of opinion that the only safe rule was to estimate the damages according to the right taken. In that case, as in these cases, it was argued that the improbability that the town would in fact deprive the mill-owners of all the water taken was a fact, the commercial value of which should be estimated by the jury as it would be by vendors and purchasers, but that view did not prevail with the court. In the opinion of a majority of the court, the considerations which governed the court in that" case apply to the present cases. The offer, indeed, says that the “ amount so necessarily returned could be ascertained with reasonable accuracy,” but if it be so, it must be ascertained by estimates similar to those made in Howe v. Weymouth. The statement probably is not true, except by assuming that certain conditions will exist in the future which may or may not exist. As but one estimate of damages for all time must be made, and as it is plainly not impossible that at some time in the future the towns may use all the water they have taken, and return no part of it to the Monatiquot River above the mill sites of the petitioners, a majority of the court are of opinion that the court below rightly refused to admit the evidence offered.
The remaining exception relates only to the petition of Stevens
We see no error in the exceptions, and the entry must be,
Exceptions overruled.
Allen, J. Upon one point, I am unable to agree with the opinion of the majority of the court. The respondents offered to prove that a certain amount of the waters used by them, in the exercise of the powers given them by St. 1885, c. 217, would necessarily be returned by percolation, after use, to the water-shed of the river below said Great Pond, and become available to the mills for mill purposes, and that the amount so necessarily returned could be ascertained with reasonable accuracy, and offered to show what said amount would be. It seems
The present cases are distinguishable from the decision in Howe v. Weymouth, 148 Mass. 605. In that case it was determined that a town which had elected to take, and had duly filed of record a statement that it had taken, all the waters of a pond, under a statute authorizing it to do so, could not be allowed to show in reduction of damages that it probably would not need nor use all of the water; in other words, that it probably would not exercise in full the rights which it had taken. In the present cases, the defendants offer to show what actual damages the plaintiffs will suffer, on the assumption that the defendants exercise their rights in full. It seems to me that the doctrine of Howe v. Weymouth ought not to be extended so as to be held applicable to cases like the present, and that the rule established in Mannville Co. v. Worcester, 138 Mass. 89, would do better justice between the parties.
Mr. Justice Knowlton and Mr. Justice Barker concur in this dissenting, opinion.