Proprietors of Mills v. Braintree Water Supply Co.

Devens, J. The first question presented by the-report is whether the right to take the waters of Little Pond, or the springs which supply it and which are within its water-shed, was granted to the defendant corporation by its charter. This charter was granted by the St. of 1886, c. 269. Section 2 of this act provided that the defendant might take the waters “ of Great Pond in the towns of Braintree and Randolph, and the waters of any spring or artesian or driven wells within the town of Braintree, and the water rights connected therewith, except the property known as the Monatiquot Spring, so called, in South Braintree, and also all lands, rights of way, and easements necessary for holding and preserving such water and for conveying the same,” etc. The plaintiff corporation was established by the St. of 1818, c. 35, and was and is composed of the owners of mill privileges on Monatiquot River. As proprietors of mills on Monatiquot River, they were granted “ full power, liberty, and authority to — 483 — make the reserves of waters wished by them in the following described ponds, or any of them, viz.: . . . the Little Pond, so called, lying in the centre of the town of Braintree, containing about seventy acres.” They were authorized in their corporate capacity to erect suitable dams for said purpose, to preserve them so as to raise the waters in said ponds as high as their original bounds, to lower the outlets, and to draw off such portions of said waters as from time to time they might think best. The plaintiffs under this authority have used Little Pond as a reservoir by maintaining a dam at its outlet, where they own a parcel of land, whereby the water is retained until they have occasion to draw off the same for the use of their mills. For about six weeks in the year, the water is of great importance to them. If deprived of it, it might be necessary to stop some of their mills during a portion of the summer, and its diminution would seriously injure them all. Upon the shore of Little Pond, and near it, the defendant has constructed and maintains a filter gallery, from which it draws water with which it supplies its customers, and it is found “ that a substantial part — much more than half — of the water in the gallery filters in from the pond; and that all, or nearly all, the remainder would have reached the pond if not intercepted by the gallery. The use of the water during the past season by the defendants diminished the quantity in use for the mills.” It also appears, that, “ if the amount of water used by the defendant is increased, a larger proportion will come from the pond than from the land side, and the larger the amount of water used, the greater will be this proportion.” It is the contention of the defendant, that the words “ spring ” and “ water rights connected therewith ” are sufficiently comprehensive to include this pond, and that the act gave the right to take any waters in the town of Braintree with the exception of Monatiquot Spring, which is not within the water-shed of Little Pond, leaving to the plaintiffs their statutory right to compensation therefor, if they are entitled to any. But a pond is quite distinguishable from the various sources of supply, whether those are the surface waters, or brooks or springs which create and maintain it. When so large as to have become what is known as a great pond, it is subjected to all the — 484 — rights which the public possess, or which the Legislature may be entitled to grant therein. The fact that the act under which the defendant claims specifies Great Pond, so called, as one which maybe taken, strongly indicates that the right to take other ponds of that class was not conferred. “ Spring,” as the word is generally used, means the source of supply. issuing from the earth, or found therein by digging or otherwise opening it, and “ the water rights connected therewith ” are those bubbling up therewith or flowing therefrom. While in Peck v. Clark, 142 Mass. 436, it was held that a stream of water whose source was on the adjoining land might pass by a conveyance as a spring, it was so because the evidence showed that this was what the parties had sought to describe, and that the word had been used by them with reference thereto. If the water cannot be taken directly from Little Pond, it cannot be drawn therefrom by percolation. Hart v. Jamaica Pond Aqueduct, 133 Mass. 488. The process by which the defendant obtains it is unimportant, and this method is one well known and often found convenient. It has often been held to be as complete a taking of water as the withdrawal of it by pipes. Brookline v. Mackintosh, 133 Mass. 215. Cowdrey v. Woburn, 136 Mass. 409. The water gallery, as described, is not intended to gather alone the water naturally upon or belonging to the land where it is ; but, being located on the shore, the waters of the pond percolate through the intervening earth and fill it. Nor does the fact that the defendant has purchased the land bordering upon the pond authorize it to withdraw the waters thereof for their purposes as a corporation. Potter v. Howe, 141 Mass. 357. We are therefore of opinion that the defendant is not entitled to take the waters of Little Pond as it now does. The plaintiffs claim the right not only to the entire waters of the pond, but to those within its water-shed, and urge that the proper construction of the defendant’s charter does not authorize it to construct any well or gallery which would intercept any water which otherwise would reach the pond, and that the defendant’s right to take any springs is thus limited to those which are outside the water-shed of this pond. This would be to construe the defendant’s charter too narrowly. The corporation is created for an important public purpose, and is authorized to — 485 — take “ the waters of any spring or artesian or driven wells within the town of Braintree,” etc. The reason why we hold that this does not authorize the taking of the waters of Little Pond is, that the water thus collected is known by a different description from those waters which are its sources of supply, but it is contemplated that these may be taken. It is the right of each landowner to dig wells on his own premises, even if he thereby intercepts the flow of water to his neighbor’s well or stream. Greenleaf v. Francis, 18 Pick. 117. Chase v. Silverstone, 62 Maine, 175. If all that the defendant had done was to construct a gallery which would reach the underground sources of supply alone which were on the land where it was constructed, or even the surface water which might flow thereon, quite a different case would be presented from that which is here found. When the defendant constructed a gallery, the principal use of which was to take water from the pond, which it had no right to do even if it thereby obtained some water which it might lawfully have appropriated, it had not fairly exercised the authority with which it was intrusted, and, independently of any rights which it might have to take the springs, the plaintiffs could fairly ask that it should be enjoined from maintaining it. If the defendant has no right to take the waters of Little Pond, it is necessary to inquire whether the plaintiffs have any such right therein that they may ask the protection of the court in the enjoyment thereof, as against the defendant, who is supplying water to certain inhabitants for domestic purposes. It is the contention of the defendant that the plaintiffs had, at most, a revocable license to use and enjoy certain public property, which the State might terminate at any time at its pleasure. Watuppa Reservoir v. Fall River, 147 Mass. 548. It is not necessary now to consider whether, under their charter and the acts done under it by them, the plaintiffs have any vested rights in the waters of this pond, or to the use of them, which could be taken away without providing compensation therefor. There is no controversy here between the plaintiffs and the Commonwealth. Even if it be conceded that the plaintiffs hold any rights which they may have in the waters subject to the paramount right of the Commonwealth to use the waters for public purposes, or to authorize others so to use it; either with or — 486 — without compensation, the plaintiffs have a right to use it a-against one to whom this authority has not been granted, in which right they are entitled to be protected. The plaintiffs have erected and maintained their dams, have had the exclusive control and use of the waters of this pond for sixty-five years, have erected valuable mills which have been of incidental benefit to the community, and have had the advantage during that time of the waters for their mills. Without considering whether this, under all the circumstances, would give more and greater rights, it is sufficient at least to entitle them to the enjoyment thereof as against a corporation acting ultra vires in removing this water. Nor is it any answer to say that the defendant is doing a valuable public work in supplying the citizens of Braintree with this water. Its right to take the waters lawfully collected and enjoyed by others is still limited to that which is conferred by its charter. While actions at law have often been resorted to as a remedy for the wrongful withdrawal of waters, they are not the only remedy. The defendant is doing damage to the mills of the plaintiffs, which can only finally be remedied by injunction. An action at law would compensate the plaintiffs only for the injury which the plaintiffs have already sustained. The provision of the St. of 1886, c. 269, § 4, which permits any party sustaining damages under the act to have the same “ assessed and determined in the manner provided by law when land is taken for the laying out of highways,” etc., is applicable only to those which are caused by the rightful action of the defendant under its charter. Nor have the plaintiffs been guilty of such laches as should deprive them of a remedy in equity unless they shall first establish their right at law. The defendant formally took under its charter a parcel of land, which it now owns, and on which it has erected its water gallery, which belonged to one Safford. This was in September, 1886, and it would seem that, as this tract was on the border of the pond, it was deemed by the defendant that it could thus lawfully withdraw the waters of the pond. Safford had no rights other than those of a littoral proprietor, and these gave him no private property in the waters of the pond. Potter v. Howe, 141 Mass. 857, 359. It was not until — 487 — after the bringing of this bill, that the defendant made a formal taking of “ all the springs, wells, and water rights connected therewith in the tract or parcel of land ” taken. On this latter taking it has been permitted to rely at the hearing, and the effect of it we have necessarily discussed in considering what were its rights acquired under its charter, as by these its powers are defined. Upon the whole case, we are of opinion that the plaintiffs are entitled to an injunction forbidding the defendant from withdrawing the water from Little Pond, and from using the gallery constructed by it unless the gallery can be so altered that it may be used without producing this result. Grand Junction Canal Co. v. Shugar, L. R. 6 Ch. 483, 488. Emporia v. Soden, 25 Kans. 588. Judgment accordingly.