Tudor v. Cambridge Water Works , 83 Mass. 164 ( 1861 )

By the Court.^*

The bill states a case within the chancery jurisdiction of this court, and with sufficient certainty to require the defendants to answer its averments. The injury to the water rights of the plaintiff in the pond, and to the fish right in the outlet, as alleged in the bill, constitutes a nuisance, and entitles him to relief in equity. If he is the owner of such rights as he avers, then the defendants have no authority to take them without suitable compensation; nor can the legislature give to the defendants any power to appropriate them without affording a remedy to the plaintiff, by which he can recover the value of his property, which has been thus taken for a public use. We cannot assume that the defendants have not infringed on the private property and rights of the plaintiff, nor that he has no such title or right as is averred in the bill. These are admitted by the demurrer.

When the nature of the plaintiff’s title is developed on a hearing of the merits, and the facts are shown concerning the extent of the right and authority exercised by the defendants under their acts of incorporation, we shall be able to determine definitively on the respective rights of the parties. They cannot be adjudicated upon this demurrer. Demurrer overruled.

* Hoar, J., did not sit in this case.