Dodge v. Inhabitants of Rockport

85 N.E. 172, 199 Mass. 274, 1908 Mass. LEXIS 818

Opinion

Sheldon, J.

The petitioner Albert Dodge, is the owner of a tide mill and mill dam on Mill River; and a brook called by various names, among which are Ale wife Brook and Cape Pond Brook, flows into Mill'River above his dam. One branch of Alewife Brook comes from a great pond called Cape Pond. The defendant town has taken the waters of Cape Pond under the provisions of St. 1894, c. 78. The jury have found that the petitioner has sustained a considerable amount of damage by this taking; and the question is raised whether he is entitled to recover therefor.

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It is provided by § 4 of the statute before us that the town “ shall pay all damages sustained by any person or corporation in property by the taking of any land, right of way, water, water source, water right or easement, or by any other thing done by said town under the authority of this act.” If the petitioner were a riparian owner upon a natural stream flowing from Cape Pond, he clearly would be entitled to recover the damages which he has sustained. Rockport v. Webster, 174 Mass. 385, 392. Proprietors of Mills v. Randolph, 157 Mass. 345. Howe v. Weymouth, 148 Mass. 605. Cowdrey v. Woburn, 136 Mass. 409. Watuppa Reservoir Co. v. Fall River, 134 Mass. 267. The Legislature might have permitted the respondent to take the waters of Cape Pond without making any compensation to owners on streams flowing therefrom. Watuppa Reservoir Co. v. Fall River, 147 Mass. 548. But it is also true, as was said by Hammond, J., in Rockport v. Webster, 174 Mass. 385, 392, that “ in making any public grant the State may impose such terms as it sees fit. It may relieve the grantee from the payment of any damages for the taking of public property, or it may require compensation to be made to private persons where no legal right has been interfered with.” Here the provision for the recovery of damages is of the same broad character that was before the court in Sheldon v. Boston & Albany Railroad, 172 Mass. 180, and Hyde v. Fall River, 189 Mass. 439.

But although there was evidence that the present outlet of Cape Pond into Alewife Brook was the original a,nd natural one, there was also evidence that this was merely an artificial channel, dug before the year 1700, though it was not disputed that the waters of Cape Pond have flowed in their present channel through the present outlet for some two hundred years. The respondent asked the judge at the trial to instruct the jury that if they found that the brook connecting Cape Pond with Alewife Brook was not a natural watercourse but an artificial channel, then the petitioner could not maintain his petition. The judge refused the request, and submitted to the jury the question whether the brook would in the course of nature flow at low tide across the flats upon which the petitioner’s dam is located, as a watercourse, if there were no dam there. The jury answered this question in the affirmative, and found that the petitioner had sustained damage in his mill property and privilege from the respondent’s taking to the amount of $600.

The ruling of the judge that upon these facts the petitioner’s rights were analogous to those of a riparian proprietor was sufficiently favorable to the respondent. It was immaterial, under the circumstances proved, whether the outlet from Cape Pond was originally natural or artificial. It had flowed in that course for more than two hundred years, and all persons had acquiesced in that condition. Stimson v. Brookline, 197 Mass. 568, and cases there cited.

And the petitioner’s rights were at least analogous to those of a riparian owner. The water of the brook flowed into the pond created by his dam, and raised its level to a higher point and for a longer time than otherwise would be the case, His use of the water of the brook was similar to that of an ordinary mill owner on a flowing stream. The fact that his dam was below high water mark and that his mill was accordingly operated as a tide mill, affected the manner of his use of the water, rather than his right to use it. In Moulton v. Newburyport Water Co. 137 Mass. 163, it was assumed that riparian owners on a tidal stream between high and low water mark have a right to the continued existence, flow and use of the stream; and it was so decided in Lyon v. Fishmongers' Co. 1 App. Cas. 662, reversing the decision of the same case reported in L. R. 10 Ch. 679, which was somewhat relied upon in the dissenting opinion in Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 565.

H. T. Lummus & C. N. Barney, for the petitioners. F. H. Tarr, for the respondent.

Nor can it be said that the petitioner’s damages, as found by the jury, are not the direct and proximate result of the taking, but are too remote or merely sentimental, as in Fay v. Salem & Danvers Aqueduct, 111 Mass. 27. There is nothing in that decision which bears on the rights of a riparian owner to use the waters of a stream flowing from a great pond. See the comments on that case in Watuppa Reservoir Co. v. Fall River, 147 Mass. 548, 565. Cole v. Eastham, 133 Mass. 65, turned upon the right of the Legislature to control absolutely the waters of great ponds; and we need not consider whether the doctrine was carried too far in that case.

The amount of the petitioner’s damages was wholly for the jury, and we cannot revise their finding.

The evidence offered upon the question of interest was immaterial ; and the judge rightly ruled that interest must be coiúputed, upon the amount of damage, if any, from December 30, 1894, the time when the waters were actually diverted. Raymond v. Commonwealth, 192 Mass. 486, 489. Hay v. Commonwealth, 183 Mass. 294. Pegler v. Hyde Park, 176 Mass. 101. Cowdrey v. Woburn, 136 Mass. 409. The respondent might itself have brought the case up for trial. Drury v. Midland Railroad, 127 Mass. 571, 585. The delay in that case was much longer than in the case at bar; and it is not important to determine whether the delay in the present case was at the request of the one party or the other.

Judgment on the verdict.

The case was submitted on briefs.

The case was reported to this court by Schofield, J.