126 Mass. 422 | Mass. | 1879
The town of Waltham was authorized hy the St. of 1872, c. 337, to take the waters of Charles Biver, or Stony
The petitioner, being the owner of a mill situate on the river, filed this petition in the Superior Court for the assessment of damages to its property caused by the withdrawal and diversion by the town of a million gallons of water daily from the river. The respondent appeared and filed an answer; and a motion having been made for the appointment of commissioners, as provided in § 3, the respondent objected to the appointment on the ground that it had the right to be heard, on the defences set up in its answer, before the appointment. It was admitted at that hearing that the town had taken land bordering on the river, had constructed works, and was distributing water therefrom, as previously stated; but denied that the water came from the river, or belonged to the petitioner. The court overruled the objection, and appointed the commissioners, whose award was afterwards accepted by the court. The respondent then claimed a trial by jury, which was had, and a special verdict returned; and the case comes before us on the respondent’s exceptions.
1. The first exception is to the appointment of the commissioners. Section 3 of the act provides that “ the said court may, upon default or hearing of said town, appoint three disinterested persons, who shall, after reasonable notice to the parties, assess the damages, if any, which such petitioner may have sustained; ” their award when accepted by the court to be final, unless either party shall demand a trial by jury.
This clause is not intended to provide for a hearing upon the merits of the controversy between the parties, but to ascertain whether a case is presented which requires the appointment of commissioners, and to determine who are suitable persons to be appointed, The presiding judge was not called upon to
2. The respondent contends that the court erred in ordering judgment on the special verdict, because the petition did not allege, and the special verdict does not find, that the water of the river was taken according to the provisions of § 2, by filing in the registry of deeds “ a description thereof sufficiently accurate, for identification, with a statement of the purpose for which the same is taken, signed by the water éommissioners ” of the town. It is to be observed that the objection raised is not that the description was not filed, and the record does not in terms show that it was not filed, but the objection is that it does not appear in the petition or the verdict that such a description was filed. The petitioner, on the other hand, contends that this provision of § 2 does not apply to the taking of the water of the river; but that § 13 contains the provisions under which the water of the river is to be taken. The statute is inartificially and carelessly drawn, and §§ 2 and 13 contain obscure and perhaps conflicting provisions; but, assuming that it was the duty of the commissioners to file such a statement under § 2, and conceding that the petition does not allege, and the verdict does not find, that they did so, we are of opinion that, upon the case as presented, the respondent cannot avail itself of this objection.
The special verdict finds that the town accepted the act, decided to take the water of Charles River to the extent of a million gallons daily, which vote was duly recorded as provided in § 13. The verdict also finds that, under and by virtue of the provisions of the act, the town took land bordering on the river, made a basin therein from which water was pumped into a reservoir and distributed to the inhabitants for the purposes
3. Nor can the right of the petitioner to recover damages for water diverted from its mill be impaired or affected because the town, as the owner of a farm bordering on the river, had the rights of a riparian proprietor in the waters of the stream; or because any of the inhabitants who chose had been accustomed to use the water of the river, from time immemorial, for drinking and domestic purposes, and for extinguishing fires, without interference or hindrance from any person.
We are not called on to consider what may be the rights of riparian proprietors to take water from the river for the purpose of selling it or disposing of it to other persons for any purpose, as the town took the water, not as a riparian proprietor, but by virtue of the powers conferred by the statute; and, as it took the water as a corporation, it is entirely unimportant what may have been the custom of its individual inhabitants to take water therefrom for domestic and other purposes. The statute does not limit or deprive the riparian owners of any legal right they may have in the waters of the stream; or restrain the individual inhabitants of the town from taking the water, according to their custom, if they have the right so to do; but it confers a new privilege on the town as a corporation, and provides that it shall pay all damages caused by the exercise of that privilege.
4. Under § 3, which provides that if the owner of property taken or person sustaining damages “shall not agree on the
5. It is also contended by the respondent, that it is not liable to the petitioner for taking the water from its filter basin, which percolates from the land adjacent, and which is intercepted by the basin before it reaches the river. The special verdict finds that a part of the water in the filter basin, which is pumped into the reservoir to be distributed to the inhabitants, comes from underground currents in the bank flowing towards the river; and a part percolates into the basin from the river itself; but the jury were unable to determine what portion came from the underground currents, and what portion came from the river.
But, for reasons stated at length in Bailey v. Woburn, ante, 416, we are of opinion that the rights of the owners of land to appropriate to their own use underground currents of water are not involved in this inquiry. The town has by its vote determined and declared that it will take the waters of the river to the extent of a million of gallons daily, has constructed works for that purpose, and by these works has withdrawn the water to supply its inhabitants; and it is found by the jury that a portion of this water, so distributed, comes from the river. It is immaterial that all the water thus taken does not come from the river itself. The town has acquired the right, and has built works enabling it, to take from the river a million gallons daily, and is exercising that right by actually withdrawing from the river all. the water which for the time being is necessary for its purposes. That it may rightfully draw from the river the full measure of one million gallons daily cannot be questioned; and if the owner of the land above, from which the underground currents flow into the basin, should appropriate them to his own use, then the respondent would be obliged to draw all the water from the river for its supply.
We are therefore of opinion that the town has taken the waters of Charles River within the meaning of the act; and as
Exceptions overruled.