The plaintiff, the town of Somerset, in one suit against the Dighton Water District seeks a declaration under G. L. c. 231A that the town has an exclusive right to use the waters and watershed of the Segreganset River for its public water supply system and that an alleged taking of the waters of the Segreganset be declared null and void. In another suit the plaintiff asked that the defendant be restrained from “any further action in execution” of the alleged taking. 1 The cases were referred to a master. The defendant appeals from interlocutory decrees which denied the defendant’s motion to recommit, overruled exceptions to the master’s report, and confirmed the report, and from a final decree substantially granting the declaratory relief requested by the plaintiff.
We summarize the master’s report. The Segreganset River flows through Dighton, where it empties into the Taunton River. Since 1927 the plaintiff, located south of Dighton on the westerly bank of the Taunton, has utilized the Segreganset watershed for its public water supply. In 1926 and 1927 the plaintiff acquired by purchase and by eminent domain 200 acres of land along the banks of the Segreganset in Dighton. In 1927 the plaintiff
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constructed a water system piping water from a well field in Dighton located in the watershed of the Segreganset.” This system soon proved inadequate. In 1945 “ [the plaintiff’s] demand for water had equalled its maximum supply.”
2
Since 1951 the plaintiff has been compelled to supplement its water sources by purchasing water from nearby communities. Except on a few occasions when the plaintiff
The plaintiff “has acute need for additional water supplies.” In 1961, at a special meeting, it voted to initiate several steps toward enlarging its water supply by diverting the waters of the Segreganset to an off-stream reservoir. These steps include the undertaldng of an engineering survey, the selection and surveying of land for a reservoir site, the appropriation of money for purposes of acquiring land and constructing an enlarged system, and the authorization of the plaintiff’s treasurer to is'sue bonds in order to raise additional money for these purposes. However, “ [n]o formal order of taking of the reservoir land has been made or recorded nor has any purchase thereof been made.”
Also in 1961 the plaintiff authorized its selectmen and water commissioners to purchase land belonging to the Montaup Electric Company (Montaup). Pursuant to this authorization, the plaintiff entered into an agreement with Montaup “to purchase some sixty acres of land in Dighton at the lowest riparian locus to the Segreganset River.” Under the agreement Montaup retained several interests in the property to be conveyed; the deed was executed on September 23, 1962, “in conformance with the earlier agreement.”
The defendant was established in 1950 by an act of the General Court, St. 1950, c. 359. In February, 1961, pursuant to a vote at its annual meeting, the defendant hired an engineering company “to explore for additional ground water supplies in . . . Dighton.” A well site was found which was “capable of yielding safely a little over 200,000 gallons per day”; the defendant had “hoped to find a well site yielding almost twice that amount.” In the fall of 1961, aware of the plaintiff’s intention to build the reservoir, the defendant hired another engineering company which prepared a plan utilizing “the surface waters of the Segreganset for Dighton’s water supply.” Schematic
On August 30, 1962, the defendant’s commissioners held what they declared to be an “emergency meeting,” though “no actual emergency existed; . . . one purpose for the promptness . . . was to adopt and record an order taking the waters of the Segreganset, before . . . [the plaintiff] could obtain and record a deed from Montaup . . . and before a restraining order freezing the status quo could be obtained.” At the meeting the defendant’s commissioners signed an “order of taking,” pursuant to which the defendant purported to appropriate “all of the waters of the Seg-reganset River and its tributaries within the [t]own of Dighton not already . . . being appropriated and used for the purposes of a public water supply.” On August 31, 1962, the “order of taking” was recorded in Bristol County Northern District registry of deeds.
The defendant states in its brief: “It is freely conceded that the [t]own of Somerset has been using considerable amounts of water derived from the watershed of the Segre-ganset River, by drilling wells and pumping the water out of the ground.” Unquestionably any use of the Segregan-set by the town for a water system is a public use.
Lynch
v.
Forbes,
By St. 1950, c. 359, § 2, the defendant was authorized to “take by eminent domain ... or acquire by lease, purchase or otherwise, and hold, the waters, or any portion thereof, of any . . . stream . . . within the town of Digh-ton not already appropriated and used for the purposes of a public water supply” (emphasis supplied). The issue before us is whether pursuant to this legislation the defendant was authorized on August 30, 1962, to take the waters of the Segreganset River.
We reject the defendant’s contention to the effect that it has a right under St. 1950, c. 359, § 2, to appropriate the waters of the Segreganset “unless it has been
in specie
appropriated
and
physically used for the purpose of a public water supply” (emphasis partially supplied). It is
It is well established in this Commonwealth that where property is devoted to a public use, it “cannot be diverted to another inconsistent public use without plain legislation to that end.”
Byfield
v.
Newton,
On the basis of the foregoing interpretation of St. 1950, c. 359, § 2, it is clear that regardless of the meaning assigned to the word “appropriated,” if the plaintiff has “used” the waters of the Segreganset River for its public water supply, the defendant’s purported talcing on August 30, 1962, is null and void. The defendant argues at length that the plaintiff’s use of the watershed and occasional use of the surface waters do not permit the conclusion that the waters of the Segreganset were “used for ... a public water supply” within the meaning of St. 1950, c. 359, § 2. In its brief the defendant cites no cases or authorities in support of this argument. We are unable to accept the defendant’s reasoning. “A brook or river, so far as concerns surface indications, is inseparably connected with its watershed and owes the volume of current to its area.”
Stratton
v.
Mount Hermon Boys’ Sch.
In their briefs the parties present arguments pertaining to several other matters, including the nature of the plaintiff’s rights as the lowest riparian holder, but our interpretation of St. 1950, c. 359, § 2, obviates the need to discuss these issues. We perceive no point in enumerating the exceptions to the master’s report. Those which merit discussion have been dealt with in this opinion. In the suit to restrain the defendant from further action in execution of the taking, the defendant’s appeal is dismissed. In the suit for declaratory relief the interlocutory and final decrees are affirmed.
So ordered.
Notes
The defendant appealed from a final decree dismissing the bill in that suit, but none of the arguments made by either party is pertinent thereto. The dismissal was with the plaintiff’s consent. The defendant lacks standing to appeal from this decree.
Brown
v.
Brown,
In 1945, approximately 87% of the plaintiff’s water was derived, from the well field in Dighton.