FROM ROCKINGHAM CIRCUIT COURT.
The petition states that the plaintiffs are a corporation duly established by law, having their principal place
of business at Salisbury and Amesbury, in the county of Essex and state of Massachusetts: from which I suppose it is to be understood that they are a Massachusetts corporation. The petition further shows, that the plaintiffs' mills for the manufacture of cotton and woollen goods, as well as the only dam they have situated below the defendant's land, are in Massachusetts; that they have one dam in Massachusetts and three in New Hampshire above the defendant's land, and that upon one of the latter dams, that at the Trickling Falls, East Kingston, they have a saw-mill and a grist-mill, — those two mills, situated above the defendant's land on the same stream, being the only works, so far as appears from the petition, carried on by them in this state.
It is to have assessed the damage for flowing and draining the defendant's land, situated in New Hampshire on a bend of the river between their two dams in Massachusetts, that this petition is brought.
The petition is founded upon ch. 20 of the Laws of 1868, and the plaintiffs say they are entitled to the benefits of that act the same as though they were a New Hampshire corporation, and their dam which causes the damage, and their mills for which that dam was built, were situated within the limits of this state. I think this position cannot be sustained. The first section of the act is as follows: "Any person, or any corporation authorized by its charter so to do, may erect and maintain on his or its own land, or upon land of another with his consent, a water-mill, and a dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same for its use and of mills below, upon and across any stream not navigable upon the terms and conditions and subject to the regulations hereinafter expressed."
It is certain that this act can have no extra-territorial application or effect. The use and management of Massachusetts real estate cannot be subjected to the control of New Hampshire laws. The legislature of this state can no more confer upon a Massachusetts corporation the right to build a dam and water-mill upon their own land, or the land of another with his consent, in that state, than they can forbid such act there; and, so far as I can see, they may as well do either, or both, as to impose "terms" "conditions," and "regulations" upon the building of such dam and mill, as provided by the act. Suppose, as is suggested by the learned counsel for the defendant, that Mr. Forsaith, instead of the plaintiffs, had been the moving party, and had petitioned to have his damages assessed, and the extent and character of the defendant's rights of flowage ascertained and fixed under the act: how could that be done without giving to the act itself, propriore vigore, as well as to a decree or judgment of the court, effect which neither can have beyond the boundaries of the state? By section 3 it is made the indispensable duty of the committee to ascertain and consider the depth and extent to which the land may or can be flowed by the dam; and in order to do this they are required to "view the premises," which must mean the dam, as well as the land injuriously affected by it. Is it to be
supposed that the legislature intended to order such an invasion of the territory of a neighboring state for the obvious purpose of carrying our municipal law where it can have no effect? If a citizen of Massachusetts, by building a dam on his own land in that state, causes the water of a stream to set back upon the land of a riparian owner above in New Hampshire, he is undoubtedly guilty of a wrongful act within this state for the injurious consequences of which he may be held liable here; but the injured citizen must, nevertheless, content himself with such remedies as are open to him, without attempting to carry an act of the legislature beyond the line of the state. The case of Wooster v. Great Falls Manufacturing Co., 39 Me. 246, referred to in the defendant's brief, appears to be quite in point. That was an action on the case to recover damages for flowing land. The dam was across the Salmon Falls river, which is the boundary line between Maine and New Hampshire. The defendants were a New Hampshire corporation, and their mills for the use of which the dam was built, were in New Hampshire. The plaintiff's land was situated in Berwick, Maine. The defendants claimed the benefit of the Maine flowage act, and contended that this common law action could not be maintained. The Maine statute provided that any man may erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon the conditions therein named; and when such dam is lawfully erected, the person sustaining damages in his lands by being overflowed by such dam may obtain compensation by complaint; and that no action shall be sustained at common law for the recovery of damages for such overflowing of lands, except in the manner provided to enforce the payment of damages, after they have been ascertained by complaint. It also, among a variety of other provisions bearing more or less analogy to those found in our own act, gave a lien upon the dam and mills as security for the damage caused thereby. The court, in an able opinion by APPLETON, J., held, that to entitle the owners of a dam to the benefits of the statute, the mill as well as the dam must be situated within the limits of the state. The only attempt to distinguish that case from the present has been put upon the ground that the Maine statute gives a lien on the dam and mill in favor of the land-owner. It is true, that fact is alluded to in the opinion of the court in connection with a variety of other circumstances which apply with equal force in the interpretation of our own statute. But the decision is fairly put upon the broad ground that "the dam which causes the flowing, the mill for the benefit of which such flowing is permitted, and the land overflowed or the property otherwise damnified by these erections, are assumed to be within the boundaries of the state, and within legislative jurisdiction." But in view of the construction put upon our act in Ash v. Cummings, 50 N.H. 591, the lien given by the Maine act seems to possess no significance that can distinguish the cases at all; for in that case it was held that until there has been an assessment and tender of the damages the common law action is not taken away; and also, in effect, that unless ample security for the payment of the damages is furnished, an injunction
will be granted to forbid any flowing of the plaintiff's land, even for the purpose of experiment, under the act. The practical difficulties in the way of enforcing the act, as thus interpreted, against a foreign corporation who have erected their dam and mill in another state, are evidently no less formidable than in case of the Maine statute, which provides for obtaining compensation upon complaint, reenforced by a lien on the mill and dam.
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FROM ROCKINGHAM CIRCUIT COURT.
The petition states that the plaintiffs are a corporation duly established by law, having their principal place
of business at Salisbury and Amesbury, in the county of Essex and state of Massachusetts: from which I suppose it is to be understood that they are a Massachusetts corporation. The petition further shows, that the plaintiffs' mills for the manufacture of cotton and woollen goods, as well as the only dam they have situated below the defendant's land, are in Massachusetts; that they have one dam in Massachusetts and three in New Hampshire above the defendant's land, and that upon one of the latter dams, that at the Trickling Falls, East Kingston, they have a saw-mill and a grist-mill, — those two mills, situated above the defendant's land on the same stream, being the only works, so far as appears from the petition, carried on by them in this state.
It is to have assessed the damage for flowing and draining the defendant's land, situated in New Hampshire on a bend of the river between their two dams in Massachusetts, that this petition is brought.
The petition is founded upon ch. 20 of the Laws of 1868, and the plaintiffs say they are entitled to the benefits of that act the same as though they were a New Hampshire corporation, and their dam which causes the damage, and their mills for which that dam was built, were situated within the limits of this state. I think this position cannot be sustained. The first section of the act is as follows: "Any person, or any corporation authorized by its charter so to do, may erect and maintain on his or its own land, or upon land of another with his consent, a water-mill, and a dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same for its use and of mills below, upon and across any stream not navigable upon the terms and conditions and subject to the regulations hereinafter expressed."
It is certain that this act can have no extra-territorial application or effect. The use and management of Massachusetts real estate cannot be subjected to the control of New Hampshire laws. The legislature of this state can no more confer upon a Massachusetts corporation the right to build a dam and water-mill upon their own land, or the land of another with his consent, in that state, than they can forbid such act there; and, so far as I can see, they may as well do either, or both, as to impose "terms" "conditions," and "regulations" upon the building of such dam and mill, as provided by the act. Suppose, as is suggested by the learned counsel for the defendant, that Mr. Forsaith, instead of the plaintiffs, had been the moving party, and had petitioned to have his damages assessed, and the extent and character of the defendant's rights of flowage ascertained and fixed under the act: how could that be done without giving to the act itself, propriore vigore, as well as to a decree or judgment of the court, effect which neither can have beyond the boundaries of the state? By section 3 it is made the indispensable duty of the committee to ascertain and consider the depth and extent to which the land may or can be flowed by the dam; and in order to do this they are required to "view the premises," which must mean the dam, as well as the land injuriously affected by it. Is it to be
supposed that the legislature intended to order such an invasion of the territory of a neighboring state for the obvious purpose of carrying our municipal law where it can have no effect? If a citizen of Massachusetts, by building a dam on his own land in that state, causes the water of a stream to set back upon the land of a riparian owner above in New Hampshire, he is undoubtedly guilty of a wrongful act within this state for the injurious consequences of which he may be held liable here; but the injured citizen must, nevertheless, content himself with such remedies as are open to him, without attempting to carry an act of the legislature beyond the line of the state. The case of Wooster v. Great Falls Manufacturing Co., 39 Me. 246, referred to in the defendant's brief, appears to be quite in point. That was an action on the case to recover damages for flowing land. The dam was across the Salmon Falls river, which is the boundary line between Maine and New Hampshire. The defendants were a New Hampshire corporation, and their mills for the use of which the dam was built, were in New Hampshire. The plaintiff's land was situated in Berwick, Maine. The defendants claimed the benefit of the Maine flowage act, and contended that this common law action could not be maintained. The Maine statute provided that any man may erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon the conditions therein named; and when such dam is lawfully erected, the person sustaining damages in his lands by being overflowed by such dam may obtain compensation by complaint; and that no action shall be sustained at common law for the recovery of damages for such overflowing of lands, except in the manner provided to enforce the payment of damages, after they have been ascertained by complaint. It also, among a variety of other provisions bearing more or less analogy to those found in our own act, gave a lien upon the dam and mills as security for the damage caused thereby. The court, in an able opinion by APPLETON, J., held, that to entitle the owners of a dam to the benefits of the statute, the mill as well as the dam must be situated within the limits of the state. The only attempt to distinguish that case from the present has been put upon the ground that the Maine statute gives a lien on the dam and mill in favor of the land-owner. It is true, that fact is alluded to in the opinion of the court in connection with a variety of other circumstances which apply with equal force in the interpretation of our own statute. But the decision is fairly put upon the broad ground that "the dam which causes the flowing, the mill for the benefit of which such flowing is permitted, and the land overflowed or the property otherwise damnified by these erections, are assumed to be within the boundaries of the state, and within legislative jurisdiction." But in view of the construction put upon our act in Ash v. Cummings, 50 N.H. 591, the lien given by the Maine act seems to possess no significance that can distinguish the cases at all; for in that case it was held that until there has been an assessment and tender of the damages the common law action is not taken away; and also, in effect, that unless ample security for the payment of the damages is furnished, an injunction
will be granted to forbid any flowing of the plaintiff's land, even for the purpose of experiment, under the act. The practical difficulties in the way of enforcing the act, as thus interpreted, against a foreign corporation who have erected their dam and mill in another state, are evidently no less formidable than in case of the Maine statute, which provides for obtaining compensation upon complaint, reenforced by a lien on the mill and dam.
It seems to me impossible to doubt that the intention of the legislature was, to confine the operation of the act within the limits of the state, thus giving it the same application as all other statutes have, and no other; that when they speak of a dam and water-mill erected on land of the owner, or upon land of another with his consent, they mean mills and dams and land within this state, where their enactments have force, and not elsewhere; and when they speak of "any corporation authorized by its charter so to do," they mean a New Hampshire corporation, deriving its authority from a charter granted by the sovereign power of this state to do the acts referred to within this state, and not a foreign corporation authorized by the legislature of another state to do the acts named within the limits of such other state.
There is another consideration, which, in my judgment, must be fatal to this petition, so far, at least, as regards the damage to the defendant's land caused by the dam or dams in Massachusetts, and so far, also, as regards dams in New Hampshire built for the benefit of mills in Massachusetts. The act is entitled "An act for the encouragement of manufactures," and the design of the legislature is apparent throughout to encourage manufactures in New Hampshire and not in the adjoining states. In order that land may be taken for this purpose against the owner's consent, the committee, and ultimately the court, must be satisfied that such taking is or may be of public use or benefit to the people of this state. I agree with counsel for the defendant that the act goes to the verge of the constitutional power of the legislature, and I may say that, but for the authorities by which the court thought they should be governed in the late case of Amoskeag Co. v. Head, I should find great difficulty in sustaining it. But, giving to the act the widest scope and effect which have been thought admissible under the constitution, I think it must be said that the public use and benefit intended were those which would arise from the erection of mills and the employment of our water-power within our own limits, and not outside. It certainly may be, in one sense of public use and benefit to the people of this state to have so good and so rich a neighbor on the south as our sister commonwealth of Massachusetts. Doubtless it may be of benefit to our people that every stream which flows from this state into that should be skirted with manufacturing establishments from the point where it leaves our borders to where it empties into the ocean; that thriving and opulent manufacturing towns should spring up along the line, although upon the other side; and that the industry, enterprise, and thrift for which the people of that state are so justly renowned should be stimulated and encouraged
by the exercise of a liberal comity in the making and administration of our laws. It may be of public benefit to the people of this state that the city of Chicago was rebuilt after the great fire which laid so large a part of it in ashes in the autumn of 1871. It perhaps would not be difficult to show that no inconsiderable benefit has resulted to our people from the rebuilding of the burnt district in Boston. I do not see that these benefits differ at all, unless it may be in degree, from those which would result from the building of a dam and mills for the manufacture of cotton and woollen goods just over the line in Massachusetts, and I do not think they are such as could have been intended by the act.
It may be urged that this is a question of fact to be found by the committee. But the committee, in the discharge of their duty, must be governed by the law, and the construction of the statute is matter of law for the court. Besides, according to the provisions of section 3 of the act, it is for the court, in the end, if either party requires it, to settle the fact as well as the law, so far as regards this question, and say whether the proposed use will be of public use or benefit; and when the facts admitted by the demurrer show that the dam and mills where the water is to be used are without the state, I see no reason why the court should not say whether the benefit alleged comes within the meaning of the act, as well upon the demurrer as after the petition has been sent to a committee, and the same facts appear in a report. In either view, I think it is the duty of the court to say whether the benefit proposed comes within the purview of the act; and I am clearly of opinion that it does not.
It is perfectly obvious that any public use or benefit arising from the plaintiffs' mills at the Trickling Falls cannot furnish ground for an application of the act in respect of flowage caused by the dam in Massachusetts. From the petition, and the course of the argument, I do not understand that it is damage caused by the dams in New Hampshire that the plaintiffs want assessed, although it does not very clearly appear, perhaps, whether they have exceeded their legal rights in the use of those dams or not. If they have not, they have no need to invoke the benefit of the act; if they have, then I am of opinion they cannot avail themselves of its provisions for the reason already given, that they are a foreign corporation, with no authority from the supreme law-making power of this state to erect dams in such way as to flow or drain the land of riparian owners above or below, against the consent of such owners.
My conclusion is, that the demurrer should be sustained.