Fosgate v. Inhabitants of Hudson

Morton, J. This is a petition to recover damages for the taking of land, water and water rights by the respondent for the purpose of enlarging its water supply. The case is before us on exceptions by the respondent to the admission of certain evidence for the petitioner and to the refusal of the court to give certain rulings that were requested by the respondent. The question in regard to evidence relates to the damages caused by the diversion of the waters of Fosgate and Joslin Brooks from the petitioner’s pasture, barnyard and other land. The pasture extended to Gates Pond which the respondent had appropriated for a water supply by a former taking, and to which, under a reservation in that taking, the petitioner had a right of access for his cattle to come to drink and for other purposes, 16 so far as the same shall not pollute or contaminate the purity of the water therein or unreasonably interfere with the use and enjoyment thereof by the town of Hudson aforesaid as a reservoir to supply the inhabitants of said town with pure • water.” The petitioner contended “ that by the diversion of the brooks his pasture and other land was wholly deprived of water, and that if the use of Gates Pond as a watering place for cattle should, in view of the fact that its waters were used for drinking and domestic purposes by the respondent, amount to a pollution or contamination of the purity of the water, and the petitioner, in consequence of such pollution, be shut off from watering his cattle there, the taking and diversion of the waters of the brooks was a very serious damage.” It was in support of this contention that the evidence objected to was admitted and we think that it was rightly admitted. The petitioner was entitled to have the jury take into account the damage done to his land for pasturing and other purposes by [231] the diversion of the waters of the brooks. As bearing upon that they necessarily would have to consider what other sources of water supply there were and their permanence and convenience or inconvenience as compared with those of which the petitioner was deprived by the taking. The questions objected to did not assume a right on the part of the petitioner to pollute the waters of Gates Pond but only directed the attention of the witnesses to the damages which the petitioner would sustain by the diversion of the waters of the brooks if he were deprived on the ground of alleged pollution of the right of access to the waters of Gates Pond. He would have no right to pollute the waters of the pond, but in the absence of statutory authority to that effect, or a reservation in its taking, the respondent would have no right to deprive him of access to the waters of the pond if he did pollute them. The first ruling requested was that “ the petitioner has the right to divert the waters of Joslin Brook for all legitimate purposes in connection with his farm.” This plainly was too broad. Under it the jury might have found that the petitioner could divert the whole or the principal part of the waters of the brook, which, as against a lower riparian proprietor, which the town of Hudson was, he clearly could not do. Moulton v. Newburyport Water Co. 137 Mass. 163. The request was therefore rightly refused. The instructions of the court were full and correct. The second ruling requested was that “ the town of Hudson, under the evidence, has not taken the waters of Joslin Brook and cannot interfere with the particular riparian rights therein.” This also was too broad. Joslin’s Brook was a tributary of Fosgate Brook and lay partly within the land that was taken and flowed into Fosgate Brook within such land. The respondent took certain land described in its taking and also took “ all the water, water rights and water supply, flowing to or from the premises above described,” namely, the land taken. Manifestly therefore this request could not have been given in the form in which it was presented and was rightly refused. The petitioner argued to the jury that “ he was entitled to have them consider, in assessing his damages, the possibilities to which his estate might be put in the future; that is, possibilities for future development.” [232] The respondent asked the court to instruct the jury: “ The petitioner is not entitled to have damages assessed because of the possibilities of the future or a future development.” The court, we think, rightly refused to give this request. The petitioner was entitled to have all the damages assessed that were caused by the taking of his land, water and water rights. The damages were to be assessed as of the time of the taking. But in estimating them the jury were at liberty to take into account all the uses and capabilities to which it was then adapted or might be applied. Teele v. Boston, 165 Mass. 88, 92, 93. Providence & Worcester Railroad v. Worcester, 155 Mass. 35, 42. Maynard v. Northampton, 157 Mass. 218. The possibilities of the land for future use at the time of the taking and the nature and purpose of such uses were therefore legitimate matters of inquiry and argument so far as they affected the present value. jExceptions overruled.