Title: Footnotes
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Permanent Link: http://ufdc.ufl.edu/WL00003188/00001
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Title: Footnotes
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Language: English
Publisher: The Conservation Foundation
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Footnotes
General Note: Box 12, Folder 11 ( Conservation Foundation - Symposium Papers on Water Allocation in Eastern U. S. - 1956 ), Item 41
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Full Text


1. U. S. President's Water Resources Policy Commission, A Water Policy for the
American People, Vol. 2, pp. 468, 473, (1950).

3. E.g. Weston v. Alden, 8 Mass. 136 (1811).
4. See e.g., Corse v. Dextar, 202 Mass. 31, 88 N.E, 332 (1909); Merrifield v.
Lombard, 95 Mass. (13 Allen) 16 (1866) (dictum); New England Calton Yarn Co.
v. Laurel Lake Mills, 190 Mass. 48, 76 N.E. 231 (1906); Ware v. Allen, 140
Mass. 513, 5 N.E. 629 (1886).

The flow to which the lower riparian is entitled is the natural flow
except as changed by reasonable use. That a long continued use by an upper
riparian has conferred a benefit on the lower, does not entitle its continuance.
Mason v. Whitney, 193 Mass. 152, 157, 78 N.E. 881 7 L.R.A. (n.s.) 289 (1906);
Whitne v. Wheeler Cotton Mills, 151 Mass. 396, 24 N.E. 774, 7 L.R.A. 613
(1890); nor generally need an intermediate riparian forego his own interest to
transmit the water as changed by use above because the change would be bene-
ficial to the user below. Id. at 160.

5. Dinardo v. DeVidio, 312 Mass. 398, 45 N.E. 2d 269 (1943).

6. Tourtellot v. Phelps, 70 Mass. (4 Gray) 370 (1855); Johnson v. Jordan, 43 Mass.
(2 Metc.) 234 (1841).

7. Pratt v. Lamson 84 Mass. (2 Allen) 275 (1861); Gauld v. Boston Duck; 79 Mass.
(13 Gray) 442 (1859).
8. New ngland Cotton Yarn Co. v. Laurel Lake Mills, 190 Mass. 48, 76 Mass. 23
(1906); Tourtellot v. Phelps 70 Mass. (4 Gray) 370 (1855).
9. Corse v. Dexter, 202 Mass 31, 88 N.E. 332 (1909);(Check!)
Merrifield v. Lombard, 95 Mass. (13 Allen) 76 (1866T'7 ctum).

10. See Amory v. Commonwealth, 321 Mass. 240, 72 N.E. 2d 549, 174 A.L.R. 370
(1947); Stratton v. Mt. ermon Boys School, 216 Mass. 83, 103 N.E. 87, 49 L.R.A.
(N.S.) 57 (1913).

11. To be entirely accurate the statement in the text should be qualified by one
fairly insignificant exception: where the purpose is solely and maliciously to
injure another, the purpose is unreasonable. Taft v. Bridgeton Worsted Co.,
237 Mass. 385, 130 N.E. 48, 13 A.L.R. 928 (1921); Tillson v. Cranebrooks, 251
Mass. 337, 146 N.E. 671 (1925) semble.
12. Elliot v. Fitchburg R.R.

13. The Elliot case, supra, comes as close as does any case to discussing this
question since the purpose there, water supply for locomotives, was non-riparian.
The view of this case seems to be that any use is reasonable which does not
violate statutory law.

14. Smith v. Agawam Coral, 84 Mass. (2 Allen) 355 (1861); Gould v. Boston Duck, 79
Mass. (13 Gray) 442 (1859); Thurber v. Martin, 68 Mass. (2 Gray) 39 (1854).


Footnotes -2-

15. McNamara v. Taft, 196 Mass. 597, 83 N.E. 310, 13 L.R.A. (N.S.) 1044 (1908);
() Neuhall v. Irison, 62 Mass, (8 Cush,) 595 (1851).
16. Stimson v. Brookline, 197 Mass. 568, 83 N.E. 893, 16 L.R.A.(N.S.) 280 (1908).

17. This conclusion seems irreputable, but is not supported by the language of the
cases. Where the issue has been the reparian's right to abstract water and
deal with it as a commodity the courts have decided against the existence of
the right, Lynnfield v. Peabody, 219 Mass. 322, 106 N.E. 977 (1914); Maulton
v. Newburyport Water Co., 137 Ms. 163 (1884). In no case, however, did the
riparian occupy the position posited in the text.
18. Hinckley v. Nicherson, 117 Mass. 213 (1875).
19. See Corse v. Dexter, 202 Mass. 31, 88 N.E. 332 (1909); Drake v. Hamilton Woolen
.Co, 99 Mass. 574 (1868); Cary v. Daniels, 49 Mass. (8 Met.) 466 (1844).
20. See Mason v. Whitney, 193 Mass. 152, 78 N.E. 881 7 L.R.A. (N.S.) 289 (1906);
cf. Merrifield v. Worcester, 110 Mass. 216 (18725; Springfield v. Harris, 86.
21. Compare Lyman v. Commissioners on Fisheries, 211 Mass. 10, 97 N.E. 66 (1912),
with asking v. Haskins, 75 Mass. (9 Gray) 390 (1857). Mc Namara v. Tat,
196 Mass. 597, 83 N.E. 310, 13 L.R.A. (N.S.) 1044 (1908); Parker v. American
Woolen Co., 95 Mass. 591, 81 N.E. 468, 10 L.R.A. (N.S.) 584 (1907)
22. Colburn v. Richards, 13 Mass. 420 (1816); Cork v. Bull, 20 Mass. ( 3 Pick) 269
23. Parker v. American Woolen Co., 195 Mass. 591, 81 N.E. 468, 10 L.R.A. (N.S.)
584 (1907). See McNmara v. Taft, 196 Mass. 597, 83 N.E. 310, 13 L.R.A. (N.S.)
1044 (1908) where ;e record Trial Judge's report) on appeal contained the
following finding "if material": plaintiff's farm was valued at about $1000;
she kept three cows and cultivated part; defendant's mill, worth about
$40,000, produced $200,000 worth of goods annually and employed about sixty
persons. No reference is made to these facts in the upper court's opinion.
24. See, e.g., Manning v. Woodlawn Cemetary, 245 Mass. 250 (1923) and 249 Mass.
281 (1924). The Cemetary had constructed an expensive system of drains which
discharged onto Manning's property. Manning having recovered damages was appa-
rently trying to force the Cemetary to pay an exorbitant amount for an easement,
and backing up its demand with a suit (successful) for an injunction.
25. For example, in Drake v. Hamilton Woolen Co., 99 Mass. 574 (1868) the court
conceded that its view might permit some injury to be inflicted on the plain-
tiff but justified its interpretation of the rights of riparian proprietors as
"tending to promote interests of the public because it enables owners of water
power, property of great value to the public, to avail themselves of it to
utmost extent which is reasonable." Id. at 580. See also Tourtellot v.
Phelps. 70 Mass. (4 Gray) 370 (1855).

Footnotes -3-

26. McNamara v. Taft 196 Mass. 597, 83 N.E. 310, 13 L.R.A. M 1044 (1908) is
interesting in this connection.

Defendant operated a textile mill providing employment for about 60 persons.
In the process of manufacture, certain chemicals were discharged into the water.
Plaintiff obtained, not merely damage, but an injunction on the ground that the
water was so polluted that her three cows refused to drink it. The court did
not even mention these facts or any possible public interest in the dispute.
The court did note, perhaps significantly, that the defendant, had not made out
a case of pollution necessarily resulting from a "reasonable use" (here ap-
parently used in the sense of "lawful and beneficial",) though possibly one of
convenience and profit. Compare, on this point, Sturtevant v. Ford, 280 Mass.
303, 182 N.E. 560 (1932). Plaintiff Sturtevant was apparently something of an
esthete and to gratify himself had created a country residence having as a
central feature the brook in question. Defendant was "engaged in a development
of semiphilanthropic nature of public interest and benefit:" he had acquired
an historic inn and large grounds which served cultural and educational ends.
While an injunction issued in this case also, the court's statement of the
facts indicates an awareness of the public interest which seems lacking in the
MacNamara opinion. It should be noted, moreover, that the appellate court in
Sturtevant modified the decree of the lower court so as to apply to only one of
defendant's several reservoirs and that that particular reservoir was used only
for storage and had a high percentage of leakage into an adjoining watershed.

27. Distribution of casey

28. Legislation relating to the use of stream current for power is said to have
originated with the provincial act, 13 Anne, passed in 1714 (Ancient Laws and
Charters, 404) cited in Elliot v. Fitchburg R.R., 64 Mass. (10 Cush.)191,

29. Blackstone Mfg. Co. v. Blackstone, 200 Mass. 82, 85 N.E. 880, 18 L.R.A. (N.S.)
755 (1908).

30. Erection of Mill & Dam. A person may, as hereinafter provided, erect and
maintain a water mill and a dam to raise water for working it, upon and across
any stream not navigable. 4 Mass. Laws Ann. c. 2 3 sec. 1 (1954).

Dam not to Injure Existing Mill, etc. -- Such dam shall not be erected to
the injury of a mill lawfully existing above or below it on the same stream on
which a mill or mill dam has been lawfully erected and used, unless the right
to maintain a mill on last mentioned site has bee lost by abandonment or other-
wise; nor shall a mill be erected or raised to the injury of any such mill
site which has been occupied as such by the owner thereof it, within a reason-
able time after commencing and occupying, he completes and puts in operation,
a mill for the working of which the water of such stream is applied... Id. at
2. See also sees. 4, 19, and 20.

31. Similar authorization is contained in 4 Mass. Laws Ann. c. 253 sec. 39 for the
erection of dams for cranberry cultivation and in sec. 41 for dams for ice

Footnotes -4-

32. "First appropriator" within meaning of the Mill Act is not necessarily the
first to complete, but rather the one who first "appropriates" a site to be
used in connection with water power provided he completes construction within
a reasonable time thereafter. Otis. At first blush the Mill Acts might seem
a taking of property by the exercise of a private power of eminent domain.
The courts, however, have held them to be rather regulation of the exercise of
common rights for common good. Blackstone Eg. Co..v. Blackstone, 200 Mass.
82, 85 N.E. 880, 18 L.R.A. (N.s.) 755 (190b). The constitutionality of the
Acts has been sustained against attack in Lowell. Otis Co. v. Ludlow Mrg. Co.,
186, Mass. 89, 70 N.E. 1009, aff'd as modified, 201 U.S. 140 (1906).
33. Hinckley v. Nickerson, 117 Mass. 213 (1875); Drake v. Hamilton Woolen Co., 99
Mass. 574 (1868); Smith v. Agawam Canal, 84 Mass. (2 Allen) 355 (186l).
34. See Hatch v. Dwight, 17 Mass. 289 (1821); Gould v. Boston Duck, 79 Mass.
(13 Gray) 414 (859-.
35. Hodges v. Raymond, 9 Mass. 316 (1832); Hatch v. Dwight, supra.
36. Whitney v. Wheeler Cotton ills, 151 Mass. 396, 24 N.E. 774 7 L.R.A. 613 (1890)
(inadequate flow at some times and excessive flow at others); Henckley v.
Nickerson, 117 Mass. 213 (1875) (exclusive appropriation of water for several
days; both plaintiff and defendant used the water to irrigate and flow land
for cranberries as well as for mill power.); Drake v. Hamilton Woolen Co.,
99 Mass. 574 (1M68) (seasonal alteration of natural flow); Pitts v. Lancaster
Mills 54 Mass. (13 Mete.) 156 (1847) (retention of entire flow for time it
tooko fill pond -- necessary to prevent damage to new dam.)
37. Compare Mason v. Whitney, 193 Mass. 152, 78 N.E. 881, 7 L.R.A. (N.S.) 289
(1906), with Barrett v. Parsons, 64 Mass. (10 Cush.) 368 (1852).
38. Dunean v. New England Power, 225 Mass. 155, 113 N.E. 281 (1916); Otis v.
156 Mass. 89 ( ).

39. Bates v. Weymouth Iron Co., 62 Mass. (8 Cush.) 548 (1851), 4 Mass. Laws Ann. c.
253 sec. 1. (1954); of. Patter v. Houses, 141 Mass. 357, 6 N.E. 233 (1886);
40. 64 Mass. (10 Oush.) 191 (1852)
41. 215 Mass. 83, 103 N.E. 87, 49 L.R.A. (N.S.) 57 (1913).
42. Id. at
43. A navigable stream is one in which the tide ebbs and flows and which is in
fact capable of being navigated to any useful purpose. Commonwealth v.
Inhabitants of Charleston, 18 Mass. (1 Pick) 180, 11 Am. Dec. 161 (1822);
Brosnan v. Gage, 240 Mass. 113, 133 N.E. 622 (1921). Travel for pleasure is,
in this context, a useful purpose. Attorney General v. Woods, 108 Mass. 436
44. Home for Aged Women v. Commonwealth, 202 Mass. 422, 89 N.E. 124 L.R.A. (N.S.)
79 (1909).


45. The state's interest in navigation is clearly paramount, and it has been sug-
gested its interest in any useful purpose also prevails in case of conflict.
See Home for Aged Women v Commonwealth, 202 Mass. 422, 434, 89 N.E. 124, 24
L.R.A. (N.S.) 79 (1909).
46. Commonwealth v. Charlestown, 18 Mass, (1 Pick.) 180, 11 Am. Dec. 161 (1822).

Another consequence is that the right to gather ice and to fish in front
of his premises is a common right, rather than an exclusive one. Brosnan v.
Sage. 240 Mass. 113, 133 N.E. 622 (1921).
47. Attorney General v. Woods, 108 Mass. 436 (1871).
48. Lawrence v. Fairhaven, 71 Mass. (5 Gray) 110 (1855).

50. The Ordinance applies only to those ponds which had not already been made the
subject of a grant to private persons. But only two such grants appear to
have been made, and both have since been taken by eminent domain.

If the pond had been granted to a town, it retains legal title, but the rights
of the public are not affected thereby. See Att'y. General v. RIsie Copper Co.,
152 Mass. 444.

51. 147 Mass. 548,
154 Mass. 305

18 N.E. 465, 1 L.R.A. 466, reargued on original and new facts,

52. More often, however, the legislature voluntarily undertakes to compensate those
economically, if not legally, injured* See e.g., Dodge v. Rockport, 199 Mass.
274 (1908);

53. Sprague v. Minon 195 Mass, 581 (1907). See Slater v. Gunn, 170 Mass. 509, 49
N.E. 101', 7 41 L.7A. 268 (1898); West Boxbury St od 689 Mass. (7 Allen)
158 (1863).
54. Slater v. Gunn, 170 Mass. 509, 49 N.E. 1017, 41 L.R.A. 268 (1898); Watuppa
Reservoir v. Fall City, 147 Mass.548, 18 N.E. 465, 1 L.R.A. 466 (

55. This value is not, however, property in the constitutional sense. Cf. Home for
Aged Women v. Commonwealth, 202 Mass. 422, 89 N.E. 124, 24 L.R.A. N.S. 79-
(1909). A statutory procedure, on petition of 10 citizens, is provided for the
acquisition of a public way to make a great pond accessible. 3 Mass. Laws Ann.
c. 91 sec. 18,

In 1647 the Ordinance was amended to provide for public access to the great
ponds: it authorized persons to "pass and repass on foot.through any man's
property for that end, as they trespass not upon any man's corn or meadow."
Slate v. Gunn, 170 Mass. 509, 49 N.E. 1017, 41 L.R.A. 268 (1898), states that
this provision was adopted to conditions no longer prevailing, public means of
access having multiplied and land having become more valuable. That case there-
fore permitted a verdict based on trespass to stand, though leaving open the
possibility that the Ordinance still has vitality as to fishermen and hunters.

I 1

es -5-


"I otnotes -6-

56. E.g. SPg* v. Minon, 195 Mass 581 (1907); m esero v. Fal ity,
147 Mass;'5. 1 N.E. 465, L.R.A 46 ( 9bst:e Co. Boston, 139
Mass. 155 (1885). The exclusion need not py the entire p it may
take the form of an exclusive grant to one person, Fay v. Salem & Danvers
Aqueduct Co., 111 Mass. 27 (1872).
If the water is neither a great pond nor a navigable stream, the owner of
abutting land must be compensated for any use of which he is deprived by govern.
ment unless the deprivation is necessary to abate a declared public nuisance;
See Stevens v. Worcester, 219 Mass. 128, 106 I.E. 587 (1914) or other exercise
of the police power, e v. Mnon, 195 Mass* 581 (1907). The distinction
is generally phrased n terms of sovereign versus police power. The latter
being defined as acts to protect the public health and safety. Id.
The owner littoral to a great pond may recover for injuries sustained by
reason of the acts of an individual, provided he can establish special damage.
Potter v. Halve, 141 Mass. 357, 6 N.OE 233 (1886). Absent such special damage,
the sole remedy is by indictment. W. lbxbury v. Stoddard, 89 Mass. (7 Allen)
158 (1863).
57. See Watuppa Reservoir v. Fall River, 147 Mass. 548, 18 N.E. 465, 1 L.R.A. 466
(N.s.) adictum).

58. Iynnfield v. Peabody, 219 Mass. 322, 106 N.E. 977 (1914).

59. See Amory v. Commonwealth, 321 Mass. 240, 254 72 N.E. 2d 549, (1947) semble.
62. Di-Nardo v. De Vidio, 312 Mass. 3981 45 N.E. 2d 269 (1943).
63* Fitzgerald v. Ibrtier, 292 Mass. 268, 198 N.E. 167 (1936);
64. Doge v. ockfort, 199 Mass. 274 (1908);
Stimson'v. Inhabitants of Brookline, 197 Mass, 568, 83 N.E. 893, 16 LR.A.
N..S.) 2 96); Cinon Gasi t Co. v. Nller, 170 Mass. 82, 48 N.E. 1024
1898). In the Stimson case, both ends of the artificial ditch connected with
the Charles River and apparently carried a substantial part of the flow of that
65. 197 Mass. 568, 83 N.E. 893, 16 L.R.A. (N.S.) 280 (1908).
66. The court also stated the jury might find the ditch was, in legal contemplation,
natural "if the flow of water ,., for many years was such as would constitute
it a natural water course ... if the flow had begun without artificial aid..."
at 571-
67, Babbitt v. Safety Fund Nat'l. Bank, 169 Mass. 361, 47 N.E. 1018 (1897). The
defendant Bank's estate was subject to an easement for the flow of the raceway
of a mill. The raceway became obstructed causing the water to back up and flood-
ed the cellar of plaintiff, whose property lay alongside the raceway. Plaintiff
was not privy to the agreement and it is very doubtful whether, on the facts of
this case, he would have succeeded had he asserted a different claim, e.g,, a
right to use the flow.

Footnotes -7-

69. Yaskill v. Thibault, 273 Mass. 266, 173 N.E. 504 (1930); Ashley v. Wolcott, 65
Mass. (11 Cush*) 192 (1853)
70. Yaskill v. Thibault, 273 Mass. 266, 173 N.E. 504 (1930);

71. Luther v. Winnsimmet, 63 Mass. (9 Cush.) 171 ( );
72. Ashle v. Wolcott supra note ; Inhabitants of the Town of Halliston v.
H ston Water Co., 306 Mass. 17, 27 N.E. 2d 194 (19W0);
73. Peck v. Clark, 142 Mass. 436, 8 N.E. 335 (1886) (stream was short, disappearing
from time to time and 3 inches wide at its widest.)
But cf. Nealley v. Town of Bradford (stream entirely within highway treated as
surface water.)
74. Yaskill v. Thibault, supra note (during dry season, 3 to 6 months each year,
no water flows); Ashley v. Wolcott, supra.

75. Fitzgerald v. Fortier, 292 Mass. 268, 198 N.E. 167 (1936);
76. Macomber v. Godfrey 108 Mass. 219 (1871); Yaskill v. Thibault, supra note 9;
SFitzgerald v. Fortier, supra note 14.

77, Macomber v. Godfrey, supra note 65.
78. Fitzgerald v. Fortier, 292 Mass. 268, 198 N.E. 167 (1936) is not inconsistent
with this thesis. The injunction issuing upon the finding that the water in
question was a water course did restrain defendant in his use of his land.
Plaintiff's conflicting use, however, also pertained to land.
A bias in favor of the development of land may serve also to explain the
court's refusal to hold the corruption of a stream by a surface drainage system
was a legal injury, Brainard v. Newton, 154 Mass. 255, 27 N.E. 995 (1891).
See also Middlesex Co. v. MbCue T i9 hMass. 103, 21 N.E. 230, 14 Am. St. Rep.
402 (1889) which upheld a landowner's right to cultivate his soil though the
manner in which it was done changed its character and caused it to work into and
fill the plaintiff's mill pond.
On the other hand, the Mill Act favors water development over that of land.
See infra at_
80. Dickinson v. Worcester, 89 Mass. (7 Allen) 19 (1863);
81. Ashley v. Whlcott, 65 Mass. (11 Cash.) 192 (1853).
82. A case in point is Sturtevant v. Ford, 280 Mass. 303, 182 N.E. 560 (1932)
which contains no indication of such argument although it would probably have
been relevant since defendant's property consisted of about 3,000 acres, acquir-
ed over a period of time.

83. Wston v. Aldin, 8 Mass. 136 (1811)

Footnotes -8-

84. Stratton v. Mt. Hermon Boys School, 216 Mass. 83, 103 N.E. 87, 49 L.R.A. (N.S.)
57 (1913).

85. This is pointed out by Professor R.R.B. Powell in Cases and Materials on Real
Property ( ).
Professor Powell regards the statement as having more authority than is usually
accorded dictum.
86. Sturtevant v. Ford, 280 Mass. 303, 182 N.E. 560 (1932)
87. Pp.
89. Springfield v. Harris, 86 Mass. (4 Allen) 494 (1862).

90. Anthony v. Lpham, 22 Mass. (5 Pick) 175 (1827); Cf. M~camara v. Taft, 196 Mass.
597, 83 10E. 310, 13 L.R.A. (N.S.) 1044 (1908) Cr i Co~n issioners on
Fisheries, 211 Mass. 10, 97 N.E. 66 (1912).
91. Elliot v. Fitchburg, R.R., 64 Mass. (10 Cush.) 191 (1852)1
92. Weston v. Aldin, 8 Mass. 136 (1811); Peck v. Clark 142 Mass. 436, 8 N.E. 335
(l~6). Merrifield v, *worcester, 110 s. 6 2).
93. The use need not be continuous, but there must be something more than sporadic
use from time to time. New land Co. v. Waltham Factories 301 Mass. 56, 16
N.E. 2d 81 (1938); Pierce v. Trvers, 97 Mass. 30b6 ( 7).
94. Slater v. Gunn, 170 Mss. 509 49 N.E. 1017, 41 L.R.A. 268 (1898); Johnson v.
Jo n, 43 ss. (2 Mtc.) 234 (184); Sumner v. iliston, 24 Mass. (7 Pick.)
195 (1828).

95. lawrence v. Fairhaum, 71 Mass. (5 Gray) 110 (1855);
96. Pierce v. Travers, 97 Mass. 306 (1867); Billiar Mg. Co. v. Neponset MWg. Co.,
33 Mass. (16 Pick.) 216 (1834).
Since the use must be adverse, no easement is created by an owner's use of
one part of his land for the benefit of another. Macomber v. Greory, 108 Mass.
S219 (1871). Jasper v. Worcester Spinning & Finishin Co., 3 Mas. 752 (1945),
while adopting ths view, held that on the severance of either part an easement
would be implied if there was nothing to the contrary in the deed or circum-
stances of this transaction.
97. Cf. Tortier v. J. P. Hood & Sons, Inc., 307 Mass. 292, N.E. (1940).
The extent of the right thus acquired is measured by actual adverse use.
Id. at 299. Where the claim is based on a dam, the measure is the "efficient
height of the dam in its ordinary action and operation." New England Mica Co.
v. Waltham Factories, 301 Mass. 56, 16 N.E. 2d 81 (1938).
98. Bliss v. Pice, 34 Mass. (17 Pick.) 23 (1835).

Footnotes -9-

99. E.g., Boston & Me. R.O v. Hunt, 210 Mass, 128 (1911); Bliss v. Rice, s a
note 95.

loo. 68 Mass. (2 Gray) 394 (1854).

101. Cook v. Hull, 20 Mass. (3 Pick.) 269 (1825); Colburn v. Richards, 13 Mass.

101&. Weston v. Alden, 8 Mass. 136 (1811).

102. The confusion does not end with these cases. Elsewhere the court has held that
actions may be maintained though damage is merely nominal where there has been
a wrongful diversion. Ware v. Allen, 140 Mass. 513, 5 N.E. 629 (1886); Lund v.
New Bedford, 121 Mass. 286 (1876); wall v. Lincoln, 77 Mass. (11 Gray) 434
( 8), The opinion in one such case distinguished between diversion through
"merely transitory acts" and through a permanent structure which "would inter-
fere with the exercise of the plaintiff's rights whenever thereafter he sought
to exercise them. .." Pick v. Clark 142 Mass. 436, 441 8 N.E. 335, (1886).
But if the diverters committed a wrong, it was surely not in the erection of an
aqueduct or conduit on their own lands, but rather in attempting to enjoy
greater rights in the water than the riparian doctrine accords them, This they
did, however, only if they injured other riparians since in the absence of
damage, no otherwise lawful use is unreasonable. The circle is completed by
holding that plaintiff-non-users' damage consists in the prescriptive rights
which may be acquired as against them, Newhall v. Ireson, 62 Mass. (8 Cush.)
595 (1851); Bolivar g. Co. v. Neponset Mg. Co., supra, n. 41. Cf. Parker v.
American Woolen Co., 195 Mass. 591, 01 N.E. 4b, 10 L.B.A. (N.S.) 584 (1907).

103. The proprietor's sole remedy under the statutes for flowing of, or other injury
to, his land is to petition for damages. The jury will then assess past
damage (the proceeding may be instituted any time within three years after
first injury), and future damage and, where put in issue, will determine the
reasonable height or heights for respondent's dam. Petitioner has three months
in which to elect to make gross damages for all future injury or an annual
compensation. Mass. Laws Ann. c. 153 sec. 3, 4, 8, 9, 10, 11, 13 & 19 (1954)
(Cum. Supp.).

104. An analogous provision is contained in 4 Mass. Laws, Ann. c. 242, sec. 15,
which provides as follows:

Roads to Swamp & Quarries.

A town or person owning low land, ponds, swamps which on account of
adjacent lands belonging to other persons or occupied as a highway, cannot be
approached, worked, cultivated, drained or used to advantage in the ordinary
manner crossing such land or highway, may construct roads, drains, tunnel
& rep. thereto, and when the construction of such improvements is required by
public convenience and necessity, may take the land of such other persons for
the location of such improvements as hereinafter provided.



I _

Footnotes -10-

107. See Mahoney v. Barrows, 240 Mass. 378 (1922) (surface water collected and
appropriated to cultivation of cranberries).

108. Fitzgerald v. Fortier, 292 Mass. 268 198 N.E. 167 (1936); (W) Maddock v.
pringfield, 21 as. 103 (1932) (s); Stimson v. Inhaitants o rooklin,
197, Mass. 568, 83 NE. 893, 16 L.R.A. (N.S.) 280 (1908); Ashley v. Wolcott,
65 Mass. (11 Cush.) 192 (1853).


110. 281 Mass. 103 (1932); Cassidy v. Old
Maddock v. Springfield, Colony R.R., 141 Mass. 174 (1=T6);

111. In Maddock v. Springfield, 281 Mass. 103 (1932) defendant's land originally
was lower than plaintiff's. After defendant filled his land, water accumulated
on the back of his lot formed a small ice skating rink in the winter and in
the spring melted and, to plaintiff's damage, flowed onto his property. In
this sort of situation, plaintiff's remedy is to erect an obstruction to the
entrance of the water. Ibid.; Dickinson V. Worcester, 89 Mass. (7 Allen) 19


113. Mahoney v. Barrans, 240 Mass. 378 (1922);
'14. Eg, Belcastro v. Morris, 261 Mass. 174, 158 N.E. 535 (1927); Manning v.
Woodlawn Cemetary Corp., 245 Mass. 250 (1923); Smith v. Faxon, 156 Mss. 589
15. Ry.lands v. Fletcher, followed in
appears to be the law of Massachusetts.
l16# See note 102, infra.
117. Braindard v. QIinton, 154 Mass. 255 27 N.E. 995 (1891) semble; Jackman v.
on Mils 137 Mass. 277 (1884); Merrifield v. Worcester, 110 Mass. 216
118. This is discussed supra at note 78.

119. Compare Drake v. Hamilton Woolen Coo 99 Mass. 574 (1868) which recognizes that
artificial reservoirs become more important as clearing, cultivation and
drainage of marsh and swamp lands destroy natural ones, with Middlesex Co. v.
McCue 149 Mass. 103, 21 N.E. 230, 14 Am. St. rep. 402 (1889), which refuses
to enoin cultivation changing the character of the soil and causing it to
fill plaintiff's artificial reservoir.


Footnotes -11-

121. Fourtellat v. Phelps, 70 Mass. (4 Gray) 370 (1855).

122o McGiven v. Carr, 272 Mass. 573, 172 N.E. 787 (1930);


124. Amory v.Commonwealth, 321 Mass. 240, 72 N.E. 2d 549 (1947); New England
otton Yarn Co. v. Laurels Lake Mills, 190 Mass. 48, 76 N.E. 231 (1906).

125. Holyoke Water Power Co. v. Whiting & Co., 276 Mass. 528 (1931); Fourtellot v.
Phelps, 70 Mass. (4 Gray) 370 (1855). An agreement reapportioning right to
use among several parties thereto will be enforced. Bardurell v. Ames, 39
Mass. (22 Pick.) 333 (1839).

The issue is generally one of construction, whether a description in
terms of a particular mill was intended to limit the right to use for that
mill or to a mill for the same specific purpose, or merely to indicate the
quantitative content of the right. The latter construction is preferred.
Bliss v. Rice, 34 Mass. (17 Pick.) 23 1835.

126. See Hatch v. Dwight, 17 Mass. 289 (1821) (dictum).

127. Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 24 N.E. 774, 7 L.R.A. 613
(k 190)
128. 4 Mass. Laws Ann. c. 253 sec. 2 (1954).

129. See Hatch v. Dwight, 17 Mass. 289 (1821);

130. Clinton Gaslight Co. v. Fuller, 170 Mass. 82, 48 N.E. 1024 (1898) (19 years);
Eddy v. Chase, 140 Mass. 471, 5 N.E, 306 (1886) ("even for 20 years"). The
Judicial reluctance can be seen quite clearly in Hatch v. Dwight where the
court refused to find abandonment although the privilege had not been operated
for a long time and, in fact, the mill occupying the site had fallen into ruin.

131. Marquis, Robert H., et al, The Movement for New Water Rights Laws in the
Tennessee Valley States. Tennessee Law Review, Volume 23, No. 7, April 1955,
PP. 797-037.
132. For further amplification of the crucial role of a plan in land-use controls
generally, see, Haar, Charles M., The Master Plan, an Impermanent Constitution.
Law and Contemporary Problems,

133. See discussion infra note
134. Underground water, perhaps more oftencalled simply ground water, has generally
been divided into (a) underground streams, i.e. waters flowing in definite
channels, and (b) percolating waters. (Water Resource Law 159, Vol. 3, U.S.
President's Water Resource Policy Commission (1950).

i I


Footnotes -12-

135, The closest any case has come to attempting a definition is to define "stream"
in terms of a flow in an ascertainable direction between banks and then state
that it and "percolating waters" are mutually exclusive. Town of Halliston
v. Halliston Water Co., 306 Mass. 17, 19-20, 27 N.E. 2d 194 (1941). It is
not even clear when water is underground water, rather than surface water. The
borderline case is water held in the topsoil of swamps and marshes. The
question can only be academic at present, however, since the rules governing
different surface water appear to be the same as those applicable to under-
ground water. Compare Dickinson v. City of Worcester, 89 Mass. (7 Allen) 19
(1663), with Wilson v. New 1 ford, See also, supra.

136. Proprietors of Mills on the Moratiquot River v. Braintree Water Supply Co.,
149 Mass. 478, 484 (1889)

137. See Town of Halliston v. Halliston Water Co., 306 Mass. 17, 27 N.E. 2d 194
(1940). This case held that an act of incorporation authorizing the taking
of springs and streams did not authorize the taking of property containing only
percolating waters. The taking was of course a purported exercise of the power
of eminent domain conferred by the act. It should be noted well at the outset
that the policy of Massachusetts is to strictly construe such acts. See Id.
at 19. Hence pronouncements of great precedential value for subsequent cases
involving eminent domain have only limited applicability where the conflict
is between private interests, although the issue is otherwise the same.

138. At least this would appear to be the fair inference from the failure to
distinguish between the two in citations of authority. See, e.g., Davis v.
paulding, 157 Mass. 431 (1892), involving percolating waters which relies
for precedent upon Greenleaf v. Francis, 35 Mass. (18 Pick.) 117 (1836) in-
volving spring water.

139. 35 Mass. (18 Pick.) 117.
140. 108 Mass. 261 (1871)

141. Id. at Tothe same effect see Owen v. Field, 102 Mass. 90 (1869).
IT is interesting to speculate what would be the result of a conflict between
a riparian's right to the natural flow diminished only by reasonable use and
a land owners to draw up unlimited amounts of underground water.

But see, e.g., Hart v. Jamaica Pond Aquaduct Corp., 133 Mass. 488 (1882)
which enjoined the defendant from digging wells to tap underground sources of
water which were also sources of a great pond; Cowdrey v. Woburn, 136 Mass.
409 (1884). which allowed damages to a riparian for the diminution in flow
of the stream caused by respondent's diversion of percolating water which
fed the stream; Hollingsworth & Vase Co* v. Foxbrough Water Supply Co., 165
Mass. 186, 42 N.E, 574 B96b which enjoined the defendant from pumping and
distributing water from the wells it had dug because it was interfering with
the percolation of water to the plaintiff's pond. All of these cases in-
volved the power of eminent domain and additionally were explicit rested on
the intent of the statute.

~ J

Footnotes -13-

142. This is the familiar doctrine of the English landmark case, Iylands v. Fletcher.

This doctrine predicates liability, not on fault, but simply on the occurrence
of injury proximately caused by the bringing or accumulation of some thing
upon the defendant's land, however reasonable such conduct may have been and
however great the precaution taken to avert injury. Of course if the injury
is one which might have been prevented by the exercise of due care, the de-
fendant is, a fortiori, liable. Ball v. Nye, 99 Mass. 582, 97 Am. Dec. 56

143. Davis v. Spaulding, 157 Mass. 431 (1892).

144. The results differed, judgment in the Davis case having been entered against
plaintiff, on the ground that he had failed to state a cause of action. The
cases, however, are distinguishable. First, in the Davis case the matter ac-
cumulated by defendant on his land did not escape onto the plaintiff's pro-
perty, and it may be argued that such physical invasion was a material fact in
the Wilson and brlands cases. Second, the caveat sounded in note supra,
may be point, eminent domain having been involved in the Wilson case, but
not in Davis and Spaulding. The absence of any mention of Wilson by the Davis
court tends to support the second hypothesis.

145. Davis v. Spaulding, supra note 143, at p. Some doubt is thrown on the
soundness of te court's reasoning by the facts of Greenleaf v. Francis, 35
Mass. (18 Pick.) 117 (1836). Defendant in that case was apparently able to
locate his well so as to gratify his- desire to injure the plaintiff by divert-
ing to his own well water which would otherwise have gone into the plaintiff's

146. Davis v. Sp ing, supra; Greenleaf v. Francis, 35 Mass. (18 Pick.) 117
836) ,en v, Fi'eld,- 2i Mass. 90 W8I9).-

147. Tinker v. Bessel, 213 Mass. 74 (1912); Hallingsworth &. Vase
Co. v. Foxborough Water Supply Co., 165 Mass. 16, 42 N.E. 574 (1896)

148. The only apparent exception to this general rule is presented by the facts of
Tinker v. Bessel, supra note 147, which, paradoxically, is the only holding
on adverse use of underground water. Defendant sought to interpose adverse use
as a defense to the plaintiff's suit for an injunction. The common grantor of
plaintiff and defendant had conveyed to plaintiff certain land and a spring
located in land which he subsequently conveyed to the defendant's predecessors.
Defendant pleaded that for more than 20 years he had taken of the water, con-
veying such amount as he needed and his premises via a subterranean pipe.
These facts were enough to establish title through adverse use, but only to
the fraction of the spring's yield actually abstracted.

The language of the court, however, has sometimes appeared to imply that
even in the ordinary situation, prescriptive rights may be acquired by di-
version and use of underground water without move. Thus in Greenleaf v.
Francis, supra note 11, the court refused to find that plaintiff had by adverse
use acquired an easement in the spring under defendant's land which had sup-
plied her well. But the reasons the court gave were, 1. plaintiff's well had
been dug only 14 years previowly, 2. defendant had had no way of knowing that
plaintiff's source of water was the spring under defendant's land and 3.
defendant had not been injured by plaintiff's use. See also Hallingsworth &
Vase Co. v. Foxborough Water Supply Co., supra note 147.

Footnotes -14-

149. Davis v. Spaulding, supra note_

150. Gallerani v. United States, 41 Fed. Supp. 293 (1941).

Only six cases have been found which involve conflicting claims by parties
both of whom were seeking to use the underground water in question. Of course
another possible explanation for the paucity of cases, is that, unsatisfactory
as the law may seem to be, it works well enough so that no real effort has been
made to get it changed, and that there has in fact been extensive use of un-
derground water sources.

152. See Thomas.

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