Whitney v. Fitchburg Railroad

Morton, J. This is a bill in equity to restrain the defendant from taking water from the plaintiff’s mill pond and for the assessment of damages caused by such taking. The case was reserved on the bill, answer and agreed facts. The agreed facts show that in 1849 the plaintiff was the owner of a large tract of land in Winchendon on which was a mill, and a dam, mill pond and water privilege. The water privilege furnished power to [562] the mill. The mill pond was an artificial pond and was supplied by a natural stream. It is the taking from this pond that is complained of, and the agreed facts show that the quantity taken is a substantial quantity. The defendant seeks to justify the taking as a riparian proprietor under and by virtue of an indenture executed in 1849 between the plaintiff and the Cheshire Railroad Company to whose rights the defendant has succeeded. It is conceded that the Cheshire Railroad Company became under the indenture of 1849 a riparian proprietor on the pond and stream. But the plaintiff contends that under the reservations contained in the indenture neither the Cheshire Railroad Company nor the defendant as its successor has any right to take water from the pond and stream as a riparian proprietor or otherwise in such quantity as to constitute a substantial interference with the water power reserved in the indenture. And we are of opinion that this contention is right. By the indenture the plaintiff conveyed to the Cheshire Railroad Company its successors and assigns a portion of the tract referred to above “ with all privileges, and appurtenances thereto belonging, . . . for the purposes and use of constructing, using and maintaining a railroad thereon ” on condition that the land should revert to the plaintiff if it should cease to be used for a railroad or for a public thoroughfare by the grantee or its assigns. The plaintiff expressly reserved, however, in the indenture to himself “ his heirs and assigns forever the right to all the water power created by a dam on the premises of the present height of the rolling part of the dam now standing on the premises,” and also of flowing the water in the pond six feet and a half above the cap of the rolling part of the dam as it then was unless the county commissioners should certify within a certain time that the flowing might be raised seven feet above the cap without endangering the railroad, in which case the grantor reserved to himself and his heirs and assigns the right to flow to the height of seven feet. In addition to these the indenture contained other reservations to the plaintiff his heirs and assigns relating to the dam, to the flow of the water, to canals and flumes, to the right to construct and maintain gates, to the right to enter and repair and to other matters relating to the water privilege. It also contained a covenant on the part of the railroad company that the plaintiff his [563] heirs and assigns should have the “ right to use and enjoy the rights and privileges hereinbefore reserved to him. and them.” Manifestly, we think, one object of the indenture was to reserve to the plaintiff his heirs and assigns the full and unobstructed and continued use and enjoyment of the water privilege. By reserving to himself “ his heirs and assigns forever the right to all the water power created by a dam on the premises of the present height of the rolling part of the dam now standing on the premises,” the plaintiff reserved to himself the right to have all the water that would naturally come down the stream to the dam flow over it, and any substantial diversion by the defendant of water which had once got into the stream and which but for such diversion would have flowed over the dam would constitute an interference with the plaintiff’s rights. Bliss v. Rice, 17 Pick. 23. Though the language is that of reservation rather than of grant, the plaintiff’s rights are not affected, it seems to us, by that circumstance. Bowen v. Conner, 6 Cush. 132. Indeed, strictly speaking, a reservation operates by way of implied grant. It is not necessary to consider whether the plaintiff would be entitled to relief in case of any unauthorized diversion whether the quantity diverted was substantial or not. Appleton v. Fullerton, 1 Gray, 186. The quantity diverted amounted to twenty-six one hundredths of a horse power a day and was, as already stated, a substantial quantity. The acts of the parties, though not decisive, would seem to be moré in harmony with the construction which we have adopted than with any other view. Tlie defendant applied to the plaintiff for leave to put a pipe into the canal on the plaintiff’s land. Permission was granted and' for many years the defendant took water by means of the pipe and used it in its railroad operations. Subsequently tbc license was revoked and then the defendant laid the pipe which is complained of and which is within its own premises. If the defendant understood that it had the right which it now claims there would seem to have been no good reason why it should have gone to the plaintiff for permission to take water from the canal on his land. The result is that we think that there should be a decree for the plaintiff. So ordered.