Nemasket Mills v. City of Taunton

Knowlton, J. The principal question in this case is what construction shall be put upon the peculiar provisions of the St. 1875, c. 217. This statute is entitled “ An Act to provide the city of Taunton with pure water.” It authorizes the taking of “ the waters of either Taunton River ... or Elders’ and Assowompsett Ponds,” and contains elaborate provisions for acquiring lands necessary for maintaining dams and reservoirs, and for laying and maintaining conduits, pipes, drains, and other works. It requires, in § 2, the payment of damages to. all persons injured in their property by proceedings under the act, and provides for the raising of money to defray the expenses incurred by the city in obtaining and distributing the water. In the first section is this language: “ Provided, however, that if said city of Taunton take water from said Assowompsett Pond the said city shall construct and maintain a dam at the place where the Assowompsett Pond flows into Nemasket River, not exceeding two and one half feet in height above the mudsill - as it now exists at said place; and provided, further, that if said dam shall not retain sufficient water for one year’s supply for the city of Taunton, then said city shall have the right to, and shall, raise said dam to such a height as will retain sufficient water for one year’s supply for said city of Taunton. It is also provided that the natural flow of said Assowompsett Pond into the Nemasket River shall at all times be maintained.” If the last sentence of this quotation stood alone, and if the words were given their ordinary meaning, it would forbid any diminution at any time of the quantity of water flowing from the pond into Nemasket River, and make it impossible for the city to supply itself from this source. These words cannot have been intended to require the keeping of the waters of the pond and the flow from the pond always undiminished in quantity, notwithstanding the taking and use by the city. We must give them a meaning that will not defeat the object of the statute. They must have been intended either merely to fix the place where the overflow of the water should be discharged from the pond without reference to the quantity, or they must, in connection with the preceding sentence, constitute a broad provision for the benefit of riparian proprietors on the stream below, under which the city, by the maintenance and use of the reser [544] voir, may have a supply of water supposed to be sufficient, and at the same time be obliged to maintain the flow of the river at the height which is usual in times of ordinary water, when the current is not increased by a freshet, or by recent uncommonly heavy rains. That the language was not intended merely to provide that the outlet for the discharge of the overflow of the pond should not be changed seems plain. If this had been the meaning of the Legislature, very different language would doubtless have been chosen, adapted to express it. The words “ natural flow,” in their ordinary signification, refer to the moving water itself, and not to the place where it is running. The word “ maintained ” points to a direct provision and to future action to produce the desired result, as distinguished from non-interference with an existing condition. Moreover, the parties have treated this provision as a limitation of the quantity of water that the city can take, and a guaranty to the proprietors below that the quantity flowing in the river shall be such as is usual in ordinary times. The city, in its official action, assumed to take the waters “ according to the terms and provisions of said Acts, and not otherwise, and to the extent that said waters may be held and taken as surplus waters and by way of storage thereof by means of dams as provided in said Acts, and no more. ” Its counsel contends that only the surplus water of the pond beyond what is necessary to maintain the ordinary flow into the river can be taken under the statute ; and the counsel for the petitioner does not suggest that the provision has reference merely to the place where the unused water shall be discharged, but contends, in the language of his brief, “ that the Legislature had in mind the granting for a water supply, in this instance, of such waters as frequently run largely to waste in freshet seasons, arid which, if stored up and this waste prevented, might perhaps in a sense properly be termed surplus waters.” Aided, by the interpretation of' the parties, we have no hesitation in holding that the statute limits the quantity of water which the city may divert, and that maintaining the natural flow is something more than leaving the outlet where it had previously been, The right to take and use the water is given with provisos. [545] If the city takes the water, it must maintain a dam at the place where the pond flows into the river, of a height which will retain water sufficient for one year’s supply of the city. It must also at all times maintain the natural flow of the pond into the river. We must give this last provision an interpretation consistent with the manifest purpose of the Legislature. The statute was enacted more than twenty years ago, when the population of Taunton was smaller than it is now. When the supplemental act was passed (St. 1893, c. 402), very likely it appeared that the city had already obtained a large quantity of water from a source other than Assowompsett Pond. The provisions of the original statute indicate that, in the opinion of the Legislature, a quantity of water sufficient to supply the city for a year could easily be retained in Assowompsett Pond by erecting a .dam at the outlet, and that this accumulation could be obtained by holding back that which ordinarily would run away in freshets and in times of uncommonly high water without being of use to anybody. It seems to have been the opinion of the Legislature that by appliances at the dam, the discharge of the water from the reservoir could be so regulated by the city as at all times to maintain the natural flow of the river as it would ordinarily be when the water was not raised above its usual height by thaws, freshets, or recent heavy rains. The requirement that a dam should be erected and a reservoir be maintained by the city as a condition to'the exercise of its right could have had no other purposé than to provide for a flow of water to the proprietors upon the stream below, and the requirement that the natural flow shall be maintained can have reference to nothing else than the regulation of the discharge of water from the reservoir into the river, and to the limitation of the use of water by the city so as not to interfere with this flow. The chief practical difficulty under the statute seems to be to determine from week to week how much water must be let down to maintain the natural flow within the meaning of the law. It may be that this difficulty is so great as to make further legislation desirable. But it need not trouble us in the present aspect of the case. The question before us arises upon the demurrer, and we are now called upon only to determine [546] whether there can be an assessment of damages under this petition. The trial may disclose facts which will enable the court to define the term “ natural flow ” more accurately than we can now define it upon the allegations of the petition, which give us no information in regard to the quantity of water that usually flows from the pond, or to the regularity or variableness of the flow. . We cannot say that the use of the water strictly in accordance with the statute will cause no actual damage to any of the proprietors below. Most of them probably will not be interfered with in any beneficial use to which they could have put the water if none had been taken. But others may have dams, reservoirs, or water rights upon the river which will be more or less affected in value by the diversion of water in times of freshet, or of uncommonly high water. Supplies which they might accumulate and use may be cut off by the reservoir dam at the pond, even though the natural flow of the water in ordinary times is always maintained. The petitioner is therefore entitled to be heard on the question of damages. Although some of the allegations of the petition are broad enough to cover damages for the diversion of water beyond the quantity which the city had a right to take under the statute, we are of opinion that the petition as a whole does not purport to seek a recovery except for the water lawfully taken, and that the demurrer cannot be sustained on the ground that an action of tort is improperly joined with a petition for the assessment of damages. Demurrer overruled.