Shaw C. J.
delivered the opinion of the Court. The plain [45]*45tiffs in the present case are a corporation, created by an act passed on the 13th of February, 1816. Si. 1815, c. 101. The writ embraces several counts, in which the plaintiffs declare, in various forms, that they are possessed of extensive meadows lying on both sides of Sudbury river, that they have been duly incorporated, that the defendants have erected and still maintain a dam on and across Concord river, into which the Sud-bury river discharges itself, by means of which their meadows have been flooded, and crops of grass injured and destroyed.
Several questions have arisen and been somewhat discussed, namely, whether the plaintiffs have been duly constituted and organized as a corporation, whether they can sue in their corporate capacity, for damages sustained by them severally, and some others, which we have not found it necessary to decide.
The main question-is, whether as such corporation, supposing all other questions disposed of in their favor, they can maintain this action against the defendants, for the acts alleged tobe done by them, assuming the facts to be true as averred.
By referring to the plaintiffs’ act of incorporation, they are described as proprietors and owners of meadow lands situated in the towns of Sudbury and East Sudbury, which are adjoining Sudbury river, so called, from the line of the town of Framingham, to the line of the town of Concord, and which have been flowed in the summer season. The corporation are empowered, among other things, to clear said river, by removing sand banks, bars and other natural obstructions, by cutting the grass growing in said river, whether within the limits of said towns or not; and they may maintain an action of the case for any unlawful obstructions put in or kept up in said river, either within the limits of said towns or elsewhere.
A question arises upon this part of the act, which it may be proper to state, though it was not considered in the argument, and is not the ground of the present decision.
It is very clear that this corporation derived their whole power to sue, from this act. The power granted is, to clear out Sudbury river, so called, and to sue for any unlawful obstructions in said river. The question is rather one of geography than of law, what is Sudbury river ? The statute gives no other particular designation, except “ so called.” As I under[46]*46stand it, Sudbury river flows into Concord river, and this into Merrimack river, and this into the sea. It appears by Hale’s map, that the Sudbury river and the Assabet river unite together and form the Concord river. Could these plaintiffs, in their corporate capacity, under the powers granted them, sue for any unlawful obstruction in Merrimack river ? If they could not, it would be because the act confers on them no power to sue for obstructions, any where but in Sudbury river. It may be said that Concord river is only a continuation of Sudbury river with an addition of a large volume of water from other sources ; and so the Merrimack is a continuation of the same river, with further additions. In both cases it may be said, the reason of the law ought to extend so as to embrace obstructions in Concord river and Merrimack river, because within the same mischief. But the true answer is, that it is not embraced within the authority specifically and very definitely given by the statute. It refers by a proper name, to a local designation, well understood. The statute does not describe the lines, within which these powers may be exercised, but it refers to a well-known name by which they are defined. So in the same act, all the inhabitants in the towns of Sudbury and East Sudbury are incorporated. The lines of these towns are not described, but evidence aliunde must be resorted to, to ascertain where the bounds of these towns are. But the local name designates them with as much precision, as if the act itself had fully described them.
Perhaps it may be contended, that the word “ elsewhere,” in the last clause of the 2d section, will enlarge the powers of the corporation, and authorize them to sue for obstructions in places other than Sudbury river. But on a close examination of that clause, it will not appear to bear this construction. It gives an authority to sue for obstructions put in, or kept up, in said river, either within the limits of the said towns or elsewdiere. The term “elsewhere,” is used in contradistinction to the two towms. They are still to be obstructions in said river, that is, in Sudbury river. It is as if the words had been, obstructions in any part of said Sudbury river, although in a part of said river, not lying in either of the towns of Sudbury or East Sud-bury. It is believed that Sudbury river, so called, extends [47]*47Into Framingham above, and Lincoln and part of Concord below Sudbury, and if so, the word “ elsewhere ” would have its application, and would give the corporation power to sue for obstructi ms in said river, either above or below the two towns named, but without extending that power to obstructions in Concord river. If this is a true construction of the statute, and if the obstruction in question was in Concord river, as averred in the declaration, it would seem to be decisive of the present action.
The manifest object of this act of incorporation, was, to improve the extensive meadows bordering on Sudbury river, in which it is well known there is very little fall for a great distance, by removing all natural obstructions, and to use the aid of the law, in causing to be removed all obstructions unlawfully created therein by other persons, by a form of action suited to that object. The whole power of the plaintiff corporation, in this respect, was, to sue for unlawful obstructions. But if the defendants, as proprietors of the canal, were justified in placing the dam in question, where they did, at the time and in the manner in which it was done, then it was not an unlawful obstruction, and this action cannot be maintained. Stowell v Flagg, 11 Mass. R. 364 ; Stevens v. Proprietors of Middlesex Canal, 12 Mass. R. 466.
By these and subsequent cases, the principle is well settled, that where the legislature have authorized the erection of a public work, by individuals or by a corporation, which may in its erection or operation occasion damage to others, and have provided a specific'mode of indemnity, the common law action of the case, treating such erection as a tort, and regarding the damage given by it as a compensation for an injury done, is taken away. Indeed it is scarcely contested, that for all damage necessarily occasioned by the construction of the canal, in taking land, digging the canal, raising embankments, the taking of streams and water-courses, and the flowage of lands, if these were done in the due exercise of the powers granted by the act of incorporation, the party damnified must pursue the statute remedy and cannot have an action on the case. If this principle applies to the ordinary cases of persons damnified in their property, by the authority of the legislature, in the exercise of [48]*48the right of eminent domain, it applies a fortiori to the present case, where the corporation can only'sue for unlawful obstruction. But a dam across a river warranted by a valid act of the legislature, is not an unlawful obstruction.
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Shaw C. J.
delivered the opinion of the Court. The plain [45]*45tiffs in the present case are a corporation, created by an act passed on the 13th of February, 1816. Si. 1815, c. 101. The writ embraces several counts, in which the plaintiffs declare, in various forms, that they are possessed of extensive meadows lying on both sides of Sudbury river, that they have been duly incorporated, that the defendants have erected and still maintain a dam on and across Concord river, into which the Sud-bury river discharges itself, by means of which their meadows have been flooded, and crops of grass injured and destroyed.
Several questions have arisen and been somewhat discussed, namely, whether the plaintiffs have been duly constituted and organized as a corporation, whether they can sue in their corporate capacity, for damages sustained by them severally, and some others, which we have not found it necessary to decide.
The main question-is, whether as such corporation, supposing all other questions disposed of in their favor, they can maintain this action against the defendants, for the acts alleged tobe done by them, assuming the facts to be true as averred.
By referring to the plaintiffs’ act of incorporation, they are described as proprietors and owners of meadow lands situated in the towns of Sudbury and East Sudbury, which are adjoining Sudbury river, so called, from the line of the town of Framingham, to the line of the town of Concord, and which have been flowed in the summer season. The corporation are empowered, among other things, to clear said river, by removing sand banks, bars and other natural obstructions, by cutting the grass growing in said river, whether within the limits of said towns or not; and they may maintain an action of the case for any unlawful obstructions put in or kept up in said river, either within the limits of said towns or elsewhere.
A question arises upon this part of the act, which it may be proper to state, though it was not considered in the argument, and is not the ground of the present decision.
It is very clear that this corporation derived their whole power to sue, from this act. The power granted is, to clear out Sudbury river, so called, and to sue for any unlawful obstructions in said river. The question is rather one of geography than of law, what is Sudbury river ? The statute gives no other particular designation, except “ so called.” As I under[46]*46stand it, Sudbury river flows into Concord river, and this into Merrimack river, and this into the sea. It appears by Hale’s map, that the Sudbury river and the Assabet river unite together and form the Concord river. Could these plaintiffs, in their corporate capacity, under the powers granted them, sue for any unlawful obstruction in Merrimack river ? If they could not, it would be because the act confers on them no power to sue for obstructions, any where but in Sudbury river. It may be said that Concord river is only a continuation of Sudbury river with an addition of a large volume of water from other sources ; and so the Merrimack is a continuation of the same river, with further additions. In both cases it may be said, the reason of the law ought to extend so as to embrace obstructions in Concord river and Merrimack river, because within the same mischief. But the true answer is, that it is not embraced within the authority specifically and very definitely given by the statute. It refers by a proper name, to a local designation, well understood. The statute does not describe the lines, within which these powers may be exercised, but it refers to a well-known name by which they are defined. So in the same act, all the inhabitants in the towns of Sudbury and East Sudbury are incorporated. The lines of these towns are not described, but evidence aliunde must be resorted to, to ascertain where the bounds of these towns are. But the local name designates them with as much precision, as if the act itself had fully described them.
Perhaps it may be contended, that the word “ elsewhere,” in the last clause of the 2d section, will enlarge the powers of the corporation, and authorize them to sue for obstructions in places other than Sudbury river. But on a close examination of that clause, it will not appear to bear this construction. It gives an authority to sue for obstructions put in, or kept up, in said river, either within the limits of the said towns or elsewdiere. The term “elsewhere,” is used in contradistinction to the two towms. They are still to be obstructions in said river, that is, in Sudbury river. It is as if the words had been, obstructions in any part of said Sudbury river, although in a part of said river, not lying in either of the towns of Sudbury or East Sud-bury. It is believed that Sudbury river, so called, extends [47]*47Into Framingham above, and Lincoln and part of Concord below Sudbury, and if so, the word “ elsewhere ” would have its application, and would give the corporation power to sue for obstructi ms in said river, either above or below the two towns named, but without extending that power to obstructions in Concord river. If this is a true construction of the statute, and if the obstruction in question was in Concord river, as averred in the declaration, it would seem to be decisive of the present action.
The manifest object of this act of incorporation, was, to improve the extensive meadows bordering on Sudbury river, in which it is well known there is very little fall for a great distance, by removing all natural obstructions, and to use the aid of the law, in causing to be removed all obstructions unlawfully created therein by other persons, by a form of action suited to that object. The whole power of the plaintiff corporation, in this respect, was, to sue for unlawful obstructions. But if the defendants, as proprietors of the canal, were justified in placing the dam in question, where they did, at the time and in the manner in which it was done, then it was not an unlawful obstruction, and this action cannot be maintained. Stowell v Flagg, 11 Mass. R. 364 ; Stevens v. Proprietors of Middlesex Canal, 12 Mass. R. 466.
By these and subsequent cases, the principle is well settled, that where the legislature have authorized the erection of a public work, by individuals or by a corporation, which may in its erection or operation occasion damage to others, and have provided a specific'mode of indemnity, the common law action of the case, treating such erection as a tort, and regarding the damage given by it as a compensation for an injury done, is taken away. Indeed it is scarcely contested, that for all damage necessarily occasioned by the construction of the canal, in taking land, digging the canal, raising embankments, the taking of streams and water-courses, and the flowage of lands, if these were done in the due exercise of the powers granted by the act of incorporation, the party damnified must pursue the statute remedy and cannot have an action on the case. If this principle applies to the ordinary cases of persons damnified in their property, by the authority of the legislature, in the exercise of [48]*48the right of eminent domain, it applies a fortiori to the present case, where the corporation can only'sue for unlawful obstruction. But a dam across a river warranted by a valid act of the legislature, is not an unlawful obstruction.
The question then is brought to this, whether the Proprietors of the Middlesex Canal, under their act of incorporation, and the various acts supplementary thereto, had authority to increase the height of their dam, in 1826, for the purpose of turning the water of Concord river more effectually into their canal.
The first act was passed on the 22d of June, 1793. St. 1793, c. 21. The purpose expressed in the preamble of the first section is, that of cutting a canal from the waters of Merrimack river into the waters of Medford river. No definite course, and no other termini are given by the act. After providing for the organization of the company, it contains a preamble, setting forth, that whereas it may be necessary in the prosecution of the business, that the property of private persons, should, as in case of highways, be appropriated for the public use, and in order that no person may be damnified by the digging and cutting canals through his land, by removing mills or mill dams, diverting water-courses, or flowing his lands, without receiving full and adequate compensation therefor ; it then goes on to provide for a special mode of ascertaining and securing payment of those damages, when the parties do not agree. The act then provides that no part of the waters of Shawshine river shall be diverted from their natural course, for the purpose aforesaid ; also, that no dwellinghouse shall be removed, and no water-course turned, on which a mill is erected, without a license therefor from the Court of Sessions, with a further proviso, that the waters of Merrimack river shall not be so diverted as to impede the water carriage down the Merrimack river.
Sect. 7th provides for a toll, to commence on the canal, as soon as the same or any part thereof shall be completed ; and sect. 8th provides, that if the proprietors refuse and neglect, for ten years, to build and complete such canal, so as to be passable, the act shall be void.
Several other acts were passed, giving additional powers, as, to make other canals, to render Concord river beatable, to extend the canal to Charles river, and the like, but not bearing [49]*49apon the present question. See St. 1794, c. 67 ; 1798, c. 16 ; 1799, c. 35 ; 1802, c. 98 ; 1807, c. 2 ; 1809, c. 19 ; 1810, c. 53; 1812, c. 112; 1812, c. 115 ; 1814, c. 100. By the statute of 1798, c. 16. the proprietors were authorized as a corporation, to purchase and hold mill seats, and erect mills on the waters connected with the canal.
The original act upon which the question mainly depends, is somewhat loosely and inartificially drawn. It was passed at a time when the legislature had little experience upon similar subjects ; and it is highly probable that at the present time a similar act would be much more carefully guarded. It is quite manifest that the legislature regarded this canal as a great public improvement, of the highest utility, and they intended to give all the powers necessary to its accomplishment. But as it could not be known, what powers would be necessary, they were given to the corporation in broad and general terms. That the legislature intended to exercise the right of eminent domain to the extent necessary to accomplish the enterprise, is manifest from the preamble, which sets forth the necessity of appropriating private property to this purpose, and providing a constitutional and adequate compensation. The powers to take property are not specially enumerated, but they are suffieiendy designated in the act, taking the different parts together.
The least doubtful of those powers, is that which authorizes the appropriation of water-courses, and, as a necessary consequence, the flowing of lands. The existence and use of a navigable canal, implies that it is to be filled and supplied with a sufficiency of water. But, in addition to this necessarily implied authority, the power is given in terms, sufficiently intelligible. The power intended to be granted, may be inferred from the exceptions. The proprietors of the canal are not to take the waters of the Shawshine river, and this is the only absolute exception. Further, no mill stream is to be taken on which a mill is actually erected, without a license from the Court of Sessions, which license they are specially authorized to grant. These provisions clearly imply that any other mill streams may be appropriated without a license, and that all mill streams may be so, under such license. That such a power may be invested by the legislature, in a public company [50]*50incorporated and organized for that purpose, seems to have been too long and uniformly practised ever since the adoption of the constitution, to be now drawn in question.
It seems therefore now scarcely open to a question, that if the act complained of by the plaintiffs had been done seasona bly after the grant of the charter, and in connexion with the original works, it would have been within the scope of their authority. But it is contended that when the canal was completed and the proprietors began to take toll, their pcvver to take property and do acts, which would directly or indirect ly do damage to the property of others, was at an end, and that all such acts, from and after such time, must be deemed unlawful and treated as nuisances and torts, to be redressed by an action sounding in damages, or.by an actual abatement by the party damnified. This must depend upon the question, whether there is any limitation of time, express or implied, within which the power was to be exercised.
It was contended that an express limitation is found in the last section, which enacts that if the proprietors shall refuse or neglect, for the space of ten years, to build and complete such canal, so as to be passable, then the act shall be void. But this provision was obviously made alio intuitu, to secure the benefit of the public, contemplated by the act, within the time. If so far made and completed as to be passable within the time, the act should not be void, but all its powers continued. Suppose the plan of the canal contemplated a high embankment, and they had authority to make it, but as it would take a long time to accomplish it, a temporary trunk or aqueduct is substituted, so as to be passable within the ten years ; might not the embankment be afterwards made and the powers necessary to accomplish it exercised for that purpose ? So some of the supplementary acts provide; that the proprietors shall have further time to do certain things, thereby implying that but for such extension, the limitation would take effect; but these, it is believed, will all be found to apply to the further and additional works which they are authorized to undertake, such as extending the canal to Charlestown, making Concord river boatable, improving Merrimack river, and the like. The Court are therefore of opinion, that the ten years did not apply as a [51]*51limitation for the exercise of powers under. the act, supposing the act to continue in force, and that there is not in any of the statutes, any express limitation of time, for the exercise of this power.
Then the question is, whether there be any limitation of time, for the exercise of this power of taking water-courses for feeders, by necessary implication. No question necessarily arises here as to the power of altering or changing the line or course of the canal, so as to take other land, or of widening or deepening the canal, essentially changing its structure, so as to require a larger volume of water. The question is, as to the right to take more water, upon the principal and main feeder, on the summit level, for supplying the canal, as it was originally made, or as it has been made without objection on the part of any party interested If there be any such limitation by implication, it must arise from the subject matter ; and it must be inferred as the understanding of the- legislature, that after such limited period, this power would be no longer necessary to accomplish the object contemplated, and therefore that it was not intended to confer the power. But if it can be reasonably inferred, that such power might be necessary, though perhaps to a very limited extent; so long as the canal should remain, it must be inferred that the necessary power was to be co-extensive with it. And it seems to us, that though the bulk of the damage by taking lands, flowing lands, disturbing water-courses and the like, was contemplated to be sustained in the outset, yet if in providing for the actual navigation and beneficial use of the canal in future, some measures would be necessary, which might cause damage to individuals, all the reasons of justice, expediency and public policy, which would warrant the use of such means, and require the persons thus damnified, to resort to their statute remedy, and bar a common law action in the first instance, would apply to such case.
The great object of the act was, to establish a canal for public use, to be perpetual. It was alike necessary to the interests of the public and the proprietors, that it should be perpetually supplied with water ; and without such supply it would he without profit to the proprietors or benefit to the public. It might well be anticipated, that by the increased [52]*52transportation on the canal, and the increased use of water therefor) 0r by the drying up of streams originally used as feeders, from natural causes, the supply from the original gourceg wouJcl become insufficient. In that event, it would be necessary to take other water-courses within the scope of the original grant, or to take an enlarged quantity of water from those already used, and thereby to flow other lands, and, being necessary, it was comprehended within the grant. At least we think, that this reasoning is sufficient to show, in the absence of any express limitation in the act, that it cannot be inferred from the nature and purposes of the enterprise, that this power was limited by implication, to the time when the canal should first be opened for use, and when the proprietors should begin to take toll. If then the power was originally well given, and there was no express or implied lim itation of time, within which it should be exercised, the act ot the defendants was lawful, and the party damnified has the same remedy, as if such feeder had been originally used. It is said in argument, that in case of such necessity, the company might apply to the legislature for additional powers. It is true they might; but the legislature might not grant them. Other public improvements might take their place in public estimation and favor, other views of policy might prevail; and the company as originally constituted, might not incline to expend their capital upon a hazardous enterprise, intended mainly for the public benefit, without having in the outset all the powers necessary to the accomplishment of the object, and sufficient to ensure their own fair remuneration. An instance occurs in the series of acts cited. The original act provided, that after the expiration of forty years, the legislature might regulate the tolls. But within seven years, an act passed, reciting that from this reservation of power on the part of the legislature^ great discouragements and embarassments had resulted in the execution of the project, and therefore the reservation was relinquished and the grant of a fixed toll was made absolute and perpetual.
On the whole, the Court are of opinion that the raising of the dam on Concord river, as a feeder for the canal, was an act which the defendants, by their act of incorporation, were origin* [53]*53ally authorized to do although it might cause some damage to the land of others ; that there was no limitation of time by the terms of the act, within which the power to command the use of water-courses for the necessary supply of the canal should be exercised ; that such limitation, of the power thus to take and appropriate water-courses, cannot by necessary implication, be deemed to have taken effect, when the canal was first opened, because the necessity did not then cease; but, if the like power was necessary to the continued use of the canal, for the purpose of navigation, the power must be considered as continuing also, and of the public necessity and expediency of using this power for the public benefit, the company, by the act of the legislature, were constituted the judges.
Should the party complaining, set out in his declaration, and maintain by his proof, that a work had been raised wantonly or maliciously, or colorably under pretence of accomplishing the purposes of their charter, but really with another and different purpose, it might present a very different question. But as they have authority to do the act complained of, for a proper purpose, of which they are made judges, such purpose is to be presumed until a contrary is shown.
The Court are of opinion that the action cannot be maintained, and that there must be
Judgment on the nonsuit