147 Mass. 548 | Mass. | 1888
These cases present an important question, not merely on account of the amount involved, but because it affects the rights of the Commonwealth in all the great ponds within its box-ders.
The St, of 1886, c. 353, § 1, provides: “ The right is hex’eby granted to the city of Fall River to draw daily from the North Watuppa Pond, not exceeding one million five hundred thousand gallons of water, in addition to the amount of water already con
The question is thus presented, whether the State can constitutionally authorize a city or town to use the waters of a great pond for public purposes, without making compensation for damages inflicted upon the owners of land or privileges upon a stream flowing from it. The answer to it must depend upon the nature of the ownership or interest which the State has in the great ponds and their waters, and upon the character and limitations, if any, of the title of such owners of land on such stream. The record in this case merely states' that the plaintiffs and the several corporations interested own the land on both sides of the Fall River. It does not show how or when they or their predecessors acquired their titles.
Originally, by grant from the king, the title to all the lands, including the great ponds within their boundaries, was in the Colony of Plymouth and the Colony of Massachusetts Bay, and after the Province charter was, unless previously parted with, in the Province of Massachusetts Bay, and after the Revolution
If an individual owns a pond which has a natural stream flowing from it, the land bordering on which is owned by others by a title in fee without any limitations, it may be that he cannot lawfully fill up the pond, or divert its waters by artificial channels or conduits, to the substantial injury of those who own land on the stream. Where lands border upon a natural stream, each of the proprietors owns the fee to the thread of the stream, and has a right to the natural flow of the stream, subject to the right of every other proprietor to make such use of the water as it passes through his land as is not unreasonably injurious to all the others who with himself have a common right in the stream. Each proprietor has the right to the benefit of it as it passes through his land for all the useful purposes to which it may be applied, and no proprietor above or below has the right unreasonably to divert, obstruct, or pollute it. Johnson v. Jordan, 2 Met. 234. Elliot v. Fitchburg Railroad, 10 Cush. 191. Cummings v. Barrett, 10 Cush. 186. Tyler v. Wilkinson, 4 Mason, 397. But where a man owns a pond, and the whole of the stream flowing from it, he would probably have the right to divert and use the waters, although it sensibly diminishes the natural flow of the water in the stream, and if he sells the land on the stream he can reserve to himself the right so to divert and use the waters.
Without going into details, this is a brief statement of the rights of private individuals in ponds and streams. But the right of the Commonwealth is of a different nature.
The Colonies and the Province derived their rights from the king, under their several charters. These charters vested in the grantees not only the right of soil, but also large powers of
The Colony ordinance of 1641-1647 provides that “ every inhabitant who is an householder shall have free fishing and fowling in any great ponds, bays, coves and rivers so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town or the General Court have otherwise appropriated them. Provided, that no town shall appropriate to any particular person or persons, any great pond, containing more than ten acres of land, and that no man shall come upon another’s propriety without their leave, otherwise than as hereafter expressed. The which clearly to determine, it is declared that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor, or the land adjoining, shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further, provided, that such proprietor shall not by this liberty have power to stop or hinder the passage of boats or other vessels in or through any sea, creeks or coves to other men’s houses or lands. And
This is now generally spoken of as the Colony ordinance of 1647, although parts of it were enacted in different years. It has continued in force through the Provincial and State governments, except that recent legislation has made some changes as to the rights in great ponds, which do not affect the question before us. St. 1869, c. 384 (Pub. Sts. c. 91, §§ 10,11). St. 1888, c. 318. And it is in force throughout the whole territory of this State, including those parts which were formerly the Colony of Plymouth, Nantucket and Dukes County, and also in Maine, although none of these were under the jurisdiction of the Colony of Massachusetts Bay. Barker v. Bates, 13 Pick. 255. Mayhew v. Norton, 17 Pick. 357. Weston v. Sampson, 8 Cush. 347.
It is true that it did not extend to these places by any positive enactment now known, passed after the union of the Colonies under the Charter of 1692, but it has been universally accepted and regarded as establishing a rule of property throughout the State. As stated by Chief Justice Shaw in Barker v. Bates, “ Though the rule in question cannot be traced to this source, as a rule of positive law, we are of opinion that it is still a settled rule of property in every part of the State and founded upon a basis quite as firm and immovable; that being a settled rule of property, it would be extremely injurious to the stability of titles, and^o the peace and interest of the community, to have it seriously drawn in question.” The cases we have cited deal with questions as to the title and rights to the sea-shore; but the laws of Massachusetts from the earliest times have regarded the rights of the public in the great ponds as similar to their rights in the sea-shore. Drury v. Natick, 10 Allen, 169, 179. Commonwealth v. Roxbury, 9 Gray, 451. Paine v. Woods, 108 Mass. 160, 169. The ordinance dealt with the subject of the great ponds as well as with the seashore, and it established a rule of property as to their ownership and uses.
Under the ordinance, the State owns the great ponds as public property, held in trust for public uses. It has not only the jus privatum, the ownership of the soil, but also the jus publicum, and the right to control and regulate the public uses to which the ponds shall be applied. The littoral proprietors of land upon the ponds have no peculiar rights in the soil or in the waters, unless it be by grant from the Legislature. Hittinger v. Eames, 121 Mass. 539. Gage v. Steinkrauss, 131 Mass. 222.
The power of the Legislature to regulate the rights of fishing, and other public rights, is very broad. Thus it may regulate the time and manner of fishing in the sea within its limits, and may grant exclusive rights of fishing. Instances of the exercise of this power in regard to the great ponds are found in the various statutes leasing such ponds to individuals, which have been held to be valid, although they grant exclusive rights to individuals and exclude others from the exercise of rights to the use of the ponds to which they were before entitled. Commonwealth v. Vincent, 108 Mass. 441. Commonwealth v. Tiffany, 119 Mass. 300. Cole v. Eastham, 133 Mass. 65.
In view of the rights and powers of the State in and over the great ponds, it seems clear that the rights of proprietors owning land either on the pond or on any stream flowing from it cannot be decided by the rules of the common law applicable to ordinary streams. They must be determined with reference to the ordinance and the rule of property established by it, and we are of opinion that they must be regarded as subordinate and subject to the paramount rights of the public declared by the ordinance. All who take and hold property liable to be affected by this rule of property take and hold under and in subordination to it. Each grant carries with it an implied reservation of
The case of Fay v. Salem & Danvers Aqueduct, 111 Mass. 27, is similar to the case at bar. In that case the defendant was an aqueduct corporation to which the Legislature had granted the right to draw water from a great pond, providing for the payment of damages suffered by any one from the taking of the water. The plaintiff was a littoral proprietor, and claimed that his house was rendered uncomfortable and unfit for the purposes for which it was designed. But the court held that he could not recover damages for this, as he had no right in the pond or its waters, and because, as stated in the opinion, “great ponds are public property, the use of which for taking water or ice, as well as for fishing, fowling, bathing, boating, or skating, may be regulated or granted by the Legislature at its discretion.”
In the cases at bar, by the act of 1886, the Legislature authorizes the city of Fall River to draw daily one million five hundred thousand gallons of water from the North Watuppa Pond, and to “ apply the water taken under this act to all domestic uses, the extinguishment of fires, and to the public uses of the city.” These are all public purposes. The Legislature, acting on the conviction that an abundant supply of pure water to the people is of paramount importance, has deemed it to be a wise public policy to appropriate the waters of this pond to those public uses, without making compensation to those who, owning land on the natural stream flowing from it, have been accustomed to use the water for power as it flows through the stream. Such owners have no vested rights in the waters of the pond, and a majority of the court is of the opinion that the Commonwealth may thus appropriate the waters by its direct action, or may authorize a city or town to do so, without being legally liable to pay any damages to the littoral owners on the pond or on the stream.
The industry of counsel has furnished us with references to between two and three hundred water acts passed by the Legislature, including some in which the right to use the waters of great ponds is granted, in most of which provision is made for compensation to those whose mill privileges or water rights are injured. These show that the policy of the State has heretofore been to provide sucÉ compensation, but they do not show that the State has not the power to use the waters without compensation. The act we are considering seems to mark a change in the public policy in regard to the waters of the great ponds, as since its enactment several other acts have been passed containing the same provisions as to damages.
The plaintiffs contend that the charter of the Watuppa Reservoir Company operated as a grant to the company of the right to use and control the waters of the Watuppa Ponds for the purposes of power, and for the benefit of the manufacturing establishments on the Fall River, of which it was and is composed. By its charter, this company was granted the “ power to make reserves of water in the Watuppa Ponds, so called, by erecting a dam across the outlet of said ponds, in the town of Troy, in the county of Bristol, so as to raise the water in said ponds, two feet higher than the dam already erected by the Troy
The charter does not grant the pond or the waters in it. The right to use the surplus water is of value, though it is held subject to any future use the State may make of the pond. There is no necessary implication of a grant of the exclusive use of the waters. The charter gives a right to raise the level of the pond, and to use the water as it flows from it, but there is nothing to indicate the intention of the State to grant away the public rights in the pond. Whether it be construed as a revocable license or as a grant of a vested right, the company took and holds its rights subject to the paramount right of the government to use the water for the public purposes for which it was held in trust. For these reasons, a majority of the court is of. the opinion that these bills cannot be maintained.
Bills dismissed.
In these cases I am unable to agree with the majority of the court, and it seems proper that I should state the principles by which I think the decision should be governed. The cases bring in question the right of a riparian proprietor to the use of the water of a running stream. We have no concern with rights in the waters of great ponds except in connection with the contention that, through these ponds, water may be diverted from the streams below without compensation to the riparian owners. The usufruct of water in a watercourse is
The permanent deprivation of this right is a taking or destruction of property, and a diversion of water from a stream, so as to prevent its running in its natural course, is within the constitutional provision for the protection'of property. As against riparian proprietors below, not even the State can authorize it without a provision for their compensation. This doctrine rests upon a principle of universal law, recognized from the earliest times, not only in this country and in England, but in continental Europe. It is established by such a weight of authority that it is no longer fairly open to question. Gardner v. Newburgh, 2 Johns. 162,165. Clinton v. Myers, 46 N. Y. 511. Smith v. Rochester, 92 N. Y. 463. Pumpelly v. Green Bay Co. 13 Wall. 166. Harding v. Stamford Water Co. 41 Conn. 87. Cooper v. Williams, 4 Ohio, 253. Lee v. Pembroke Iron Co. 57 Maine, 481. Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. Arimond v. Green Bay & Mississippi Canal Co. 31 Wis. 316. Eaton v. Boston, Concord, & Montreal Railroad, 51 N. H. 504.
In Pennsylvania it is held that riparian proprietors take subject to a paramount right in the State to divert water for navigation, and perhaps for other purposes. But the decisions of that State depend in part upon a construction of the original grants, which are said to have extended only to the banks of the great rivers, and they differ from those of England and of most of the other States. Rundle v. Delaware & Raritan Canal Co. 14 How. 80. Shrunk v. Schuylkill Navigation Co. 14 S. & R. 71. Wilts & Berks Canal Navigation Co. v. Swindon Waterworks, L. R. 9 Ch. 451.
But the right of the State to regulate the use by the public of the watercourses within its limits, and to control rivers for that purpose, is not involved in the cases at bar, for the Fall River is in no sense a navigable stream, and the acts complained of have no connection with navigation.
Apart from the Body of Liberties of 1641 and the ordinance of 1647, which I shall presently consider, neither an individual nor the State has any better right to divert water from the Fall River by drawing it from the Watuppa Ponds, than by drawing it from the river itself below the ponds; for the river and ponds are parts of a natural waterway, through which the water passes directly from its sources to the sea. Together they constitute a single system and natural feature of the country, the preservation of whose form and identity is essential to the enjoyment of all the property bordering upon their waters. As against riparian owners below, every reason which forbids the diversion of water from a swiftly flowing stream is equally strong to prevent diversion where the water moves more slowly on its way to its outlet. And this has been distinctly adjudicated in cases of high authority, and, so far as I am aware, without contradiction. Gardner v. Newburgh, 2 Johns. 162, 165. Clinton v. Myers, 46 N. Y. 511. Smith v. Rochester, 92 N. Y. 463. Hebron Gravel Co. v. Harvey, 90 Ind. 192. Dudden v. Guardians of the Poor, 1 H. & N. 627. Howe v. Norman, 13 R. I. 488. Schaefer v. Marthaler, 34 Minn. 487. West v. Taylor, 16 Oregon, 165. See also Cummings v. Barrett, 10 Cush. 186.
The purpose of this legislation, which bears date 1641-1647, seems to have been to secure to all the people certain common rights in the great ponds, and to resident householders similar rights in the bays, inlets, and navigable rivers of the Commonwealth. It contains nothing which, by implication even, seems intended to limit the right of riparian proprietors upon running streams to have the water flow in its natural course. In construing it, we must consider the situation of the country at the time it was passed. A large number of watercourses in this Commonwealth find their sources in great ponds. Private grants must have been made upon some of these streams prior to 1641. Upon the construction of this legislation contended for by the defendant, it would have been unconstitutional as against these grants; not indeed in violation of a written constitution, for there was none; but it would have been contrary to the principles of right which lie at the foundation of all constitutions, and which were then as rigorously regarded as if they had been embodied in a written constitution.
Undoubtedly the State may use and control these ponds in any reasonable way for the preservation and regulation of these rights. But such use and control must not be inconsistent with the continued existence of the rivers and streams which have been accustomed to flow from them. Doubtless the State, as proprietor, may appropriate them to any other use which does not interfere with the ordinary rights of proprietors upon outlet streams along whose lands the waters flow. But as proprietor the State has no greater right than any other proprietor would have, as against the owners upon these streams; unless indeed its right of regulation and control, for the protection of public rights secured by the ordinance, be deemed an incident of ownership, and not merely of sovereignty. This view seems in harmony with all the numerous decisions which have dealt with the subject. Commonwealth v. Alger, 7 Cush. 58. Cummings v. Barrett, 10 Cush. 186, 188. Commonwealth v. Roxbury, 9 Gray, 451, 477, and 503, note. West Roxbury v. Stoddard, 7 Allen, 158. Berry v. Raddin, 11 Allen, 577. Commonwealth v. Vincent, 108 Mass. 441. Fay v. Salem & Danvers Aqueduct, 111 Mass. 27.
Fay v. Salem & Danvers Aqueduct, 111 Mass. 27, which is relied on by the defendant, contains nothing inconsistent with it. In that case the petitioner sought to. recover damages under the statute for an injury occasioned by the taking of water by an aqueduct corporation from a great pond, on the ground that his dwelling-house was thereby rendered uncomfortable, and unfit for the purposes for which it was designed. His petition was dismissed on two grounds: one was that such an injury was too remote to be the subject of an assessment of damages under the statute, and the other that he had no private right of property in the pond. It has been held in several of the above cited cases that the public, as well as the landowners along a great pond, may make a reasonable use of it for obtaining water, and for fishing, fowling, bathing, boating, and skating. In other words, every member of the community who can gain access to it has the same rights in it that riparian proprietors commonly have in similar smaller ponds. It was therefore decided that a landowner upon it, whose land comes only to the water’s edge, has in it no separate right, but only a right as one of the public. That which would otherwise be his private right is held to be merged in his public rights. See Lyon v. Fishmongers’ Co. L. R. 10 Ch. 679.
It follows, therefore, that when the Legislature grants those rights to an individual or a corporation, it does not deprive him of property. He is presumed to have bought his land knowing that he could acquire no property in the pond, and trusting to the probable preservation of the public rights for his enjoyment of it. But these decisions do not touch the question whether the owner of land upon a watercourse below can be deprived of water by diversion at the fountain head.
Mr. Justice Gray says in the opinion in the case of Fay v. Salem & Danvers Aqueduct, which we are considering, that the Legislature “ had full authority to grant the right to an aqueduct corporation to take and conduct the water of the pond for the use of the inhabitants of towns in the neighborhood; making
If the small pond had no outlet, the purchaser’s title to the water in it would enable him to use it in any way he might choose. The water in such a pond would permanently appertain to the locus, and would belong as entirely to the owner of the place in which it accumulated as the land itself by which it was supported. If his pond happened to be a link in a chain through which water made its course from the mountains to the sea, his ownership of the water would give him only the reasonable usufruct of it as it was passing by. He could not consume it, or put it out of visible existence, as he might the solid land within his purchase, because such a use of it would be inconsistent with the right of his neighbors to enjoy their real property in its natural state. In this view, in order to describe the quality of his ownership, it is sometimes said that a riparian proprietor has no title to the water itself of a running stream, but only to the usufruct of it. In a sense, that is true; in another sense, he has a perfect title to the water considered as water of a stream; for the property is real estate naturally moving in a defined course, and he has as good a title as it is
No question has arisen in any of the cases which has made it necessary for the court to express an opinion as to the nature of the ownership of the Commonwealth in the waters of great ponds, whether hemmed in by continuous banks, or passing into streams on their way to farms or mills below. The question under discussion in the last-named case was one which would have been pertinent to a pond without an outlet stream, the waters of which, if it had been a small pond, would have been absolutely owned by its proprietor. I believe there is not an expression in any opinion upon this subject which gives countenance to the defendant's contention, unless it be held, as it has never hitherto been held, that, under the ordinance, the ownership or title of the Commonwealth in the waters of great ponds is larger than a private person could obtain by a perfect deed, or by an original unrestricted grant from the State, of a similar small pond, and, as applied to running waters in a pond, larger than is consistent with the nature of the property to which it relates.
In Fay v. Salem & Danvers Aqueduct, ubi supra, it is said of the water, that “ the Legislature, and the respondents acting under their authority, had the right to take and draw it off for the public use.” But this was merely a statement of their right in reference to the petitioners, who had no rights in it, and not of a general right to take it without compensation as against riparian proprietors upon a stream below. For not only is the necessity to make compensation for property so taken recognized in a former part of the opinion, but the statute under which the suit was brought provided for it, and the court expressly held, in an opinion by Chief Justice Bigelow in a former suit between the same parties, that the taking of this very water was an exercise of the right of eminent domain. St. 1850, c. 273. Fay v. Salem & Danvers Aqueduct, 9 Allen, 577.
It is common knowledge that, from the earliest times, rights in the water of streams flowing from great ponds have been regarded as no less perfect than those in other streams. The
Against the opinion and practice of our people in relation to rights in water for more than two hundred and fifty years, — against legislative interpretation of the law, frequently repeated and uniform until the passage of this act, — courts should hesitate long before establishing a doctrine which will deprive mill-owners and others of valuable 'property naturally inherent in their real estate. And, in my opinion, it is reading into the Body of Liberties and the ordinance of 1647 what is not written in them, to say that by them our fathers put an incumbrance upon property bordering upon streams in every part of the Commonwealth. It seems a much more natural and better construction of them, and one consistent with all the authorities, to hold that they were intended to preserve public rights, and not to subject landowners remote from great ponds to the possibility of a change in the natural features of their estates.
The taking of 1,500,000 gallons of water per day for sale to inhabitants of Fall River cannot' be authorized as a regulation of public rights in the use of the pond. It is an act of an entirely different character from the direct use of the pond itself by the individuals composing the general public; and it is a substantial diversion of water from the river below. In respect to the principles applicable to it, it cannot be distinguished from a taking of all the water of the stream. The. statute which assumes to authorize it declares negatively that the right is granted “ without liability to pay any other damages than the State itself would be legally liable to pay,” and it makes no provision for compensation to those whose property is taken. In my opinion, it is not in conformity with the Constitution, and
The plaintiffs contend that, as against the charter of the Watuppa Reservoir Company, it is also unconstitutional, as impairing the obligation of a contract. I do not desire to discuss at length this branch of the case, and I do not wish to be deemed to have assented, by silence, to the view of it taken by the majority of the court. It is true that a grant from the sovereign power is to be construed strictly against the grantee. It is true that the sovereignty of the Commonwealth as a ruling power was not impaired by the charter granted to this corporation. It may also be conceded that the rights of property acquired by the corporation under its charter are subordinate to the rights of the public to use the ponds for fishing, boating, bathing, and other kindred purposes, and that the right of the Commonwealth to legislate for the protection and regulation of these public rights was not affected by the act of incorporation.
But the case finds that, acting strictly within the authority of its legislative grant, the corporation has, at great expense, erected a dam at the outlet of the ponds, raised the water, and maintained a reservoir for the purpose of using the water for power. It also finds that, under the same special authority, it has procured a title to lands to be flowed all around both ponds, and it appears that both its property right to this special use of the water granted by the State, and its property in the lands around the ponds, will be taken away, or greatly diminished in value, if the defendant is permitted to proceed and appropriate this water. It is a rule of law that, in transactions in relation to its property, not affecting its sovereignty, the Commonwealth is bound by its contracts, like an individual. In such dealings, it voluntarily lays aside its sovereignty.
The right to regulate the business or repeal the charters of certain corporations, reserved in the act of March 3, 1809, to which this charter is made subject, and the similar right in the broader statute of 1831, c. 81, (Pub. Sts. c. 105, § 3,) have their limitations. In dealing with the latter statute, Chief Justice Shaw, in Commonwealth v. Essex Co. 13 Gray, 239, 253, says: “ The rule to be extracted is this ; that where, under power in a charter, rights have been acquired and become vested, no
There is great force in the argument, that, by the acts of the corporation under its charter, the contract of the Commonwealth has become executed, and that the rights of the corporation have become vested, so that they cannot be taken away without compensation, — at least so long as the charter remains unrepealed.
I am requested to say that Mr. Justice William Allen and Mr. Justice Charles Allen concur in this opinion.