Moulton v. Newburyport Water Co.

137 Mass. 163, 1884 Mass. LEXIS 213

• Court: Massachusetts Supreme Judicial Court
• Decided: May 8, 1884
• Status: Published

Opinion

C. Allen, J.

1. We are not called upon to determine whether or not the petitioners would have had a right to dispose " of all the water running in the brook, if they had owned the land upon both sides of it down to the place where it emptied into tide-water at low tide. That question does not arise in this case, and is left open for future determination. It cannot be said, as the petitioners contend, that no one but the petitioners had any interest in the stream, because at its mouth there was a public landing, one side of which bounded on the brook. For all that we know to the contrary, the water from the stream may have been useful or necessary, except perhaps at high tide, to make the landing available upon the side bounding on the brook. And in such case it is plain that the petitioners, by reason of their ownership of the land upon the opposite side, and also upon both sides at a short distance up stream, would not have a right to sell and appropriate one half of the water. Where there are opposite owners upon a stream of running water, important uses by each owner, as, for example, for water power, for boating and landing, for fishing, for bathing, would be impaired if the other were at liberty to withdraw from the bed of the stream one half of the volume of water which usually flows therein. Such an extensive use. of the water would be unreasonable. The doctrine applicable to such cases' is thus laid down in Washburn on Easements, 221: “ The property in the stream is one and indivisible, and each riparian proprietor is bound to use it accordingly as an entire stream in its natural channel; or, in other words, he carinot sever the stream, for a severance "would destroy the rights of both. One proprietor cannot, however, so appropriate or use the stream as materially to injure others jointly interested in it. Each having a right to only one half of the water, he may use the same, but must use it as it is accustomed to flow down the channel.” See also Canal Trustees v. Haven, 11 Ill. 554; Vandenburgh v. Van Bergen, 13 Johns. 212 ; Corning v. Troy Iron & Nail Factory, 40 N. Y. 191; Webb v. Portland Manuf. Co. 3 Sumner, 189; Pratt v. Lamson, 2 Allen, 275, 287; Miner v. Gilmour, 12 Moore P. C. 131, 156. The claim of the petitioners that at least they had the right to dispose of half of the waters running in the brook, as an article of merchandise, was based on their ownership of one bank of the stream; and the court properly ruled to the contrary. Such ownership did not give them the right to withdraw and dispose of one half of the running water, to the injury of the public landing.

The petitioners now contend that they could sell the right to take all the water flowing in the brook at high tide; but the bill of exceptions does not show that this point was called to the attention of the presiding judge, and no ruling was asked that it should be left to the jury to determine whether at any stages of the tide," and, if so, at what ones, the water of the brook might be wholly or partially withdrawn without impairing the rights of the public in the landing, or how much might be so withdrawn. The ruling given was in reply to the instruction asked, namely, as to the right to dispose of at least one half of the water; and this, as we understand it, had no special reference to the petitioners’ rights as affected by different stages of the tide, but only as affected by their ownership of land upon the stream.

2. The damages must be measured by the market value of the land at the time it was taken ; not its value to the petitioners, nor to the respondent; not the value which it might have under different circumstances from those then existing. The petitioners were not entitled to swell the damages beyond the actual fair market value of the land at the time, by any consideration of the chance or probability that, in the future, authority might be acquired, by legislation or purchase, to carry the water in pipes to neighboring towns. Such chance or probability must needs enter to some extent into the market value itself ; and, so far as the market value might be enhanced thereby, the petitioners were entitled to the full benefit of it. If there were different customers who were ready to give more for the land on account of this chance, or if there were any other circumstances affecting the price which it would bring upon a fair sale in the market, these elements would necessarily be considered by the jury, or by a witness, in forming an opinion of the market value. Nevertheless, the value for these special and possible purposes is not the test, but the fair market value of the land in view of all the purposes to which it was naturally adapted. Cobb v. Boston, 112 Mass. 181. Lawrence v. Boston, 119 Mass. 126. Drury v. Midland Railroad, 127 Mass. 571, 584.

The petitioners appear to have asked for something more than this, and they sought to show what was its fair market value for a storage basin to the respondent, and what was its fair market value for a storage basin for supplying Newburyport or any of the adjacent towns with water by pipes carried thereto; and they requested an instruction that its market value as a storage basin for the storage of water for the respondent, or for any other parties, was to be considered by the jury in estimating the damages. In these ways it was sought, as we understand the bill of exceptions, to have the special value of the land to the respondent considered, or some other test adopted, or element included, than the fair market value of the land, in view of all the circumstances which then existed. The bill of exceptions does not show that the petitioners were deprived of the full benefit of the true rule of damages, as above expressed. If the instruction requested included more than this, the refusal to give it was right. If it did not, no exception lies to the refusal of the judge to adopt the precise language of the request.

Exceptions overruled.