USA > Massachusetts > Norfolk County > Braintree > Town annual report of Braintree, Massachusetts for the year 1891 > Part 6
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The proprietors of mills on Monatiquot River petitioned the Su- preme Court for an injunction to restrain the Braintree Water Sup- ply Company from taking the water of Little Pond.
The following decision was given : -
PROPRIETORS ON MONATIQUOT RIVER v. BRAINTREE SUPPLY COMPANY.
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 watershed was granted to the defendant corporation by its charter. This charter was granted by the Act of 1886, Chap. 269, the second section of which provided that it might " take the Great Pond and the waters of any spring or artesian or driven well within the town of Brain- tree and the water rights connected therewith, except the property known as the Monatiquot Spring, so called, in South Braintree, al.d also all lands, rights of way and easements necessary for holding and preserving such water and for conveying the same," and also " all lands, rights of way and easements necessary for holding and preserving such waters."
The plaintiff corporation was established by Acts of 1868,
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Chap. 35, and was and is composed of the owners of mill privi- leges on Monatiquot River. As proprietors of mills on Monatiquot River they were granted full power, liberty and authority to make the reserves of water wished by them in the following described ponds or in any of them, viz. : "The Little Pond, so called, lying in the centre 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 out- lets, and to draw off such portions of said waters as from time to time they may think best.
The plaintiffs have used, under this authority, Little Pond as a reservoir, maintaining a dam at its outlet, where they own a parcel of land, whereby the water is retained until they have need of and have occasion to draw off the same for the use of their mills, about six weeks in the year. The water is of great importance to them. If deprived of it, it may be necessary to stop some of their mills during a portion of the summer, and its diminution would seriously injure them all. Before 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 cus- tomers, and it is found that a substantial part, much more than half of the water in the gallery, filters from the pond, and that all or nearly all of 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 defendants 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 word " springs " and " waters connected therewith " are sufficiently comprehensive to include this pond, and that the act gave the right to take any water in the town of Braintree with the exception of Monatiquot Springs, which are not within the watershed of Little Pond, leaving to the plaintiff's a statutory right to compensation therefor, if they are entitled to any.
But a pond is quite distinguishable from the various sources of
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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 subject to all the 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 may be taken, strongly indicates that the right to take other ponds of that class was not inferred. Springs, as the word is generally used, means the sources of supply issuing from the earth as found therein by digging or otherwise opening it, and " the waters connected there- with " are those flowing therefrom or bubbling up therewith.
While in Peck v. Clark, 142 Mass. 446, it was held that a stream of water, whose source was on the adjoining land, might pass 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 Aqueduct Corporation, 133 Mass. 488.
The process by which the defendant obtains it is unimportant, and the 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. McIntosh, 133 Mass. 215 ; Cowbrey v. Woodman, 130 Mass. 410.
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 de- fendant has purchased the land bounding upon the pond authorize it to withdraw the waters thereof for their purposes as a corpora- tion. Potter v. Howe, 141 Mass. 357.
The plaintiff claims not only the right to the entire waters of the pond, but to those within its watershed, and urges that the proper construction of defendant's charter does not authorize it to con- struct 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 watershed of this pond. This would be to construe defendant's
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charter too narrowly. The corporation is created for an important public purpose. It is authorized to "take the waters of any springs 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 the waters which are its sources of supply, but it is contemplated that these may be taken. It is the right of each land owner to dig wells on his own premises even if he thereby intercepts the flow of water to the neighbor's well or stream. Greenleaf v. Francis, 18 Pick. 117; Chase v. Sil- verstone, 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 when 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 independ- ent of any right which it might have to take the springs, the plain- tiffs could fairly ask that it be enjoined from maintaining it. If the defendant has no right to take the waters of Little Pond, it is nec- essary to inquire whether the plaintiffs have any such right therein that they may ask protection of the Court in the enjoyment thereof, as against the defendant who is supplying water to certain inhabit- ants for domestic uses, and it is the contention of the defendant that the plaintiffs had a most " revocable license to use and enjoy certain public property which the State might terminate at any time at its pleasure." Watuppa Reservoir Company 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 vested rights in the waters of this pond or to the use of them which can 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 plaintiff's hold any right, which they may have in the waters, subject to the permanent right of the
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rights and privileges of the petitioner, under Stat. 1886, Chap. 269, Sect. 10, have met the parties and their witnesses and counsel at sundry times, the last of which hearings was on the eleventh day of February, 1891, the report of which last hearing was sent to us February 28, 1891, and, upon due and careful consideration of the premises, we do award as the compensation to be paid by the defendant to the petitioner corporation the sum of one hundred and fifty-nine thousand six hundred and ten dollars and forty-four cents, with interest on said sum from March 13, 1891.
It appeared in evidence before us that a suit in equity is pending in this court, in which the proprietors of mills on Monatiquot River and others are plaintiffs, and said Braintree Water Supply Com- pany is defendant, relating to claims for damages for taking water from Little Pond in Braintree, and in which the plaintiffs had secured a decree for an injunction forbidding the Braintree Water Supply Company from taking water from said Little Pond; and that the partnership of Wheeler and Parks, the contractors for building the works, the value of which, with other things, is in question in this suit, had paid the plaintiffs in that suit the sum of $20,500 in satisfaction of said claims so far as said Wheeler and Parks and said Braintree Water Supply Company are concerned, with an agreement to pay a further sum of $1,500 in case the same could be recovered of the town of Braintree in this suit, and that said contractors had received from said proprietors of mills on Monatiquot River and others two deeds, by the former of which deeds a transfer is made to said Wheeler and Parks of said suit in equity, and all claims and demands against the Braintree Water Supply Company in respect to the taking of the water from Little Pond, and by the second of which deeds all claims, demands, suits, petitions, actions and causes of action are released to the Braintree Water Supply Company, as will more fully appear by the copies of said deeds hereto annexed, marked " A " and " B " and made part hereof ; and it was shown that said deed marked " B " was and is held by said Wheeler and Parks in escrow to be delivered to said Brain- tree Water Supply Company on the termination of this suit, and said company alleged and its witnesses testified that it could secure upon said Wheeler and Parks a delivery of said deed B now held in escrow, and a transfer to said Water Company and said town of
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all their right and title under said deed A at or before the entry of a decree for compensation in this case.
The compensation above allowed by us. to wit, said sum of one hundred and fifty-nine thousand six hundred and ten dollars and forty-four cents includes no estimate for, nor payment of, said water rights and we award that the town is not liable therefor nor for those next described.
It further appeared that Wheeler and Parks had also obtained from said proprietors of mills on Monatiquot River and others a third deed, conveying rights and interests connected with Little Pond, dated Oct. 8, 1889, which has been recorded with Norfolk Deeds in Book 631, at page 341.
It also appeared that the petitioner had executed a mortgage of its property to secure the payment of its bonds to the amount of one hundred thousand dollars, of which bonds the amount in all of ninety-two thousand dollars have actually been issued, and it alleged, and its witnesses testified that said bonds had not been sold, but pledged, and that it could and would procure all said bonds and said mortgage to be cancelled at any time when its compensation to be fixed in this case is paid.
We report these facts concerning the water supply and the mortgage and bonds to the end, that the Court may make such order as to title as it may deem proper, our said award of one hundred and fifty-nine thousand six hundred and ten dollars and forty-four cents being made upon the basis that the mortgage and bonds shall be cancelled, and that all rights acquired by . Wheeler and Parks and the Braintree Water Supply Company from the proprietors of mills on Monatiquot River and others as aforesaid should be transferred and vested in the town of Braintree.
It was agreed in a writing herewith returned, marked "Exhibit C," that our award as to compensation should be final.
It was further agree I in a writing herewith returned and marked "Exhibit D," that we should award as to the amount of our fees, and that such amount thereof as should not be paid by the county should be paid by either party as we should award and determine.
We award as our fees the sum of $1,800 to each, in all the sum of $5,400, and that such part thereof as shall not be paid by the county shall be paid by the defendant.
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We file herewith a statement of the number of days taken in the hearings in order that the amount, if any, of our fees which the County should pay may be ascertained.
Signed, JOHN LOWELL, DARWIN E. WARE, MOSES WILLIAMS, Commissioners.
MARCH 11, 1891.
A true copy. Attest : R. B. WORTHINGTON, Assist. Clerk.
On account of the taking of the waters of Great Pond the mill owners instituted proceedings against the three towns of Ran- dolph, Holbrook and Braintree.
The suits were entered for trial at the civil session of the Supe- rior Court, holden at Dedham on the first Monday in May, 1890. Hon. William Gaston and Asa P. French, Esq., were retained as counsel by the towns of Randolph and Holbrook, and Hon. Edward Avery and Albert E. Avery, Esq., were retained as counsel for the town of Braintree. Hon. Everett C. Bumpus and Reginald A. Foster, Esq., appeared as counsel for the several mill owners.
Judge James M. Barker presiding at said term proposed refer- ring the several cases to a board of auditors. This proposition was most strenuously objected to on the part of the several towns, and exceptions were taken by counsel to said reference, claiming a right to a trial before a jury. The Court, however, appointed Horatio G. Parker of Cambridge, James D. Colt of Pittsfield, and Felix Rackemann of Milton as auditors. The hearings were held in Boston, and commenced July 16, 1890, and continued until Sept. 20, 1890.
Forty days were occupied before the auditors, in addition to the time spent in the preliminary preparation and examination of the several cases.
On the 29th day of September, 1890, the auditors made the following awards :- 1
.
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To the Proprietors of Mills on Monatiquot River
$2,000 00
S. and E. Hollingsworth
. 19,000 00
Hollingsworth & Whitney, lessees
.
1,000 00
O. Ames Corporation . 3,500 00 ·
Stevens & Willis 2,500 00 ·
A. S. Morrison, et al. 9,000 00
Lydia O. Morrison
2,000 00
Jenkins Manufacturing Company
11,000 00
Betsey B. Hobart
.
2.000 00
Total .
$52,000 00
.
The total amount claimed was about
$121,000 00
The net expenses attending said suits exclusive of counsel fees, for the three towns amounted to . 5,200 08
The proportion for Braintree was 1,733 36
The compensation of the three auditors amounted to-
3,243 32
which has been paid by the county of Norfolk. An appeal was en- tered in order to secure a trial by jury. The town of Braintree passed the following : -
Voted, Aug. 8, 1891, That the Selectmen be and are hereby au- thorized and directed to discontinue any further defence in the cases of proprietors of mills on Monatiquot River and mill owners on Monatiquot River against Braintree, Randolph and Holbrook. for damages caused by the taking of the wa- ters of Great Pond, upon receiving from the mill owners an obligation to save the town of Braintree harmless from any greater liability than one third of the amount of the auditors' award in said cases, and interest, and one third of the costs of court to the date of the agreement.
Voted, That no further legal expenses be incurred in defending the Great Pond water cases than to protect the rights of Braintree to the waters of said pond.
Voted, That the Selectmen be and hereby are authorized and di- rected to settle the Great Pond Water cases with the plaintiffs on the basis of one third of the award made by the auditors against Braintree, Randolph and Holbrook, with interest and costs of court to date, upon receiving from the plaintiffs a release from all
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claims for damages against the town of Braintree, arising from the taking of Great Pond water, and an undertaking by the plaintiffs to hold the town harmless from all further expense or liability in the matter of the taking of Great Pond water.
The cases were tried before the Superior Court, Norfolk County. The award of this court cut down the amount an average of twelve per cent from that allowed by the commissioners.
The Board submits the following as a report of the Water De- partment from Feb. 1, 1891, to Dec. 31, 1891.
At the last municipal election Judge Asa French declining a re-election, Dr. T. Haven Dearing was chosen a member of the board. On March 16, the Board organized by the choice of Hon. James T. Stevens, chairman, and John V. Scollard, secretary. Peter D. Holbrook was chosen treasurer; and as trustees of the sinking fund the same organization was effected.
On March 13, the commissioners appointed to fix a price on the corporate property, rights and franchise of the Braintree Water Supply Company, reported its decision that the town should pay the sum of $159,610.44 to the above named Company.
Under the provisions of an Act of the Legislature of 1886, by which the Braintree Water Supply Company was incorporated, the town at a meeting called for the purpose, on March 24, elected as a Board of Water Commissioners, T. H. Dearing for three years, James T. Stevens for two years, and John V. Scollard for one year. The town at this meeting also took the following action, viz. : -
Voted unanimously, That the town treasurer be and he is hereby authorized and directed to issue from time to time the bonds of the town to an amount not exceeding in the aggregate one hundred thousand dollars, under the power conferred on this town by the 11th section of the 269th chapter of the Acts of the Commonwealth for the year 1886 ; said bonds to be signed by the town treasurer and countersigned by the Water Commissioners, as provided in said 11th section of said Act, to be issued in denom- inations of not less than five hundred dollars, nor more than one thousand dollars each, to be payable in thirty years from their date, and to bear interest at a rate not exceeding four per cent per annum. Said bonds to be sold or pledged by the said Water
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Commissioners as they may deem proper in accordance with the provisions of said Act.
Voted, That the town appropriate the sum of five thousand dollars to pay the interest on the bonds under said Act of 1886; so much of said money to be used as may be necessary for said purpose.
Voted, That the town shall at its next annnal meeting, and at every annual meeting thereafter so long as it may be necessary, raise and appropriate such a sum for the establishment and main- tenance of a sinking fund as, with its accumulations, shall be sufficient for the payment of the bonds issued under Chapter 269 of the Acts of 1886, and by a vote passed March 24, 1891.
Voted, That the proceeds of the sale of the bonds, heretofore issued by the town under Chapter 217 of the Acts of 1885, may be and are hereby authorized to be used for the settlement of claims against the town arising under the aforesaid Act of 1885, or under the 269th chapter of the Acts of the year 1886.
Voted, That the Selectmen and Water Commissioners are hereby directed to petition the Legislature for leave to is ue additional bonds, notes or scrip, to an amount not exceeding fifty thousand dollars in the aggregate, the proceeds of the same to be applied in payment of any liability of the town under the award of the commissioners appointed under Chapter 269 of the Acts 'of the year 1886, and any costs and expenses connected therewith, and for such extensions of the water works as may be deemed neces- sary and expedient, and for such other and further legislation as may be found necessary to use and apply any money received from the sale of bonds heretofore issued for the payment of its liability under the Act of 1886, Chapter 269, and for the acquiring of the lands and water rights on or about the borders of Little Pond, and the waters of said pond, in conformity to the terms of said award, and for the vesting of the powers and the duties of the Water Commissioners under one head, and for such further or other legislation as may be found necessary under the existing state of things.
On March 30, the Board elected at the foregoing meeting effected an organization by the choice of the same officers elected March 16.
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SUIT OF BOYCE HEIRS.
The estate of W. R. Boyce had a claim against the town which amounted to three hundred dollars, including costs and expenses. These charges were for engineering services performed by the late Mr. Boyce, on account of the Cavanagh contract. As the case, if contested, would be tried at Worcester, involving considerable expense in securing witnesses, and also for the desirability of stop- ping litigation upon these matters, the Board took the initiatory steps to bring about a settlement. As a result, a settlement was effected between the town and Marvin M. Taylor, attorney for Boyce estate, and the sum of $245.00 was paid by the Board in full satisfaction of all claims of the Boyce estate against the town. We believe that this was the most satisfactory way out of the matter, which opinion was concurred in by Hon. Asa French, chairman of the board which employed Mr. Boyce.
SPECIAL COMMITTEE TO SETTLE LITIGATION.
On May 8, the town, being anxious to settle the water suits and come into possession of the plant of the Water Company, passed the following vote : -
Voted, That a committee be appointed, consisting of the present Board,of Water Commissioners, with two others to be designated by this meeting ; that said committee have full powers to secure a transfer to the town of the franchise, rights, and all the property of the Braintree Water Supply Company, in accordance with the terms of the award of the commissioners appointed by the Supreme Court, rendered to said Court March 13, 1891; that they secure as soon as possible the necessary decree of the Court, conferring said award, in order that interest may be stopped, service pipe supplied, extensions made, and the town placed in absolute control and management of its water supply, and that all pending suits rel- ative to the water question, including the claim of John Cavanagh & Sons, be referred to said committee with full powers to secure such a settlement of the same as may be in their judgment for the best interests of the town, without further litigation, expense, or delay, and that the counsel now employed by the town, in all the cases above referred to be discharged, and said committee be au-
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thorized to take such legal advice only as may be necessary to secure a satisfactory settlement of the same.
Hon. F. A. Hobart and T. A. Watson, Esq., were appointed as the committee. The committee created by this vote met on May 11, and organized by the choice of James T. Stevens, chairman, and John V. Scollard, secretary.
The committee immediately arranged for a consultation with the firm of John Cavanagh & Son. This firm, it will be remembered, contracted to put in a system of works from Great Pond. Suspen- sion of operations resulted in a suit against the town. The case was placed in the hands of an auditor, several hearings having been held at considerable expense to both parties. At the date of the consultation with the Messrs. Cavanagh, their claims with interest amounted to upwards of $22,000.00, which would with expenses. of trial foot up to $24,000.00.
The committee made a minute examination of the papers and es- timates bearing upon the case, prepared by the engineer of the town at that time, and decided that in proportion to the amount. agreed to be paid for the whole job contracted for by the Cavanaghs, in addition to the amount previously paid ($29,614.94), there was now due nearly $16,000.00, interest not included. After several consultations with Messrs. Cavanagh, it was finally ascertained that a settlement could be effected for $17,000. The committee finally decided to settle upon this basis, believing that a further continuance of the case in court would add to the already large amount incurred for legal expenses in this case, and in the end the verdict might not be any more favorable to the town than the set- tlement offered to the committee.
At this juncture the committee received notice through the Se- lectmen, from Hon. Edward Avery, withdrawing from all so-called " water suits."
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