Comins v. Turner's Falls Co. , 142 Mass. 443 ( 1886 )

Morton, C. J.

The purpose of the Legislature, in passing the St. of 1880, c. 148, was to change the Turner’s Falls Company from a navigation company into a manufacturing company, to authorize it to maintain its dams at the height existing at the time the act was passed, and, as to all future operations of the company, to put it upon the same footing with the other manufacturing companies of the State.

The court accordingly held, at the former hearing of this case, that if the complainant was injured by the raising of the respondent’s dam after the act was passed and accepted by the corporation, his remedy was by an application to the Superior Court under the mill act. Comins v. Turner’s Falls Co. 138 Mass. 222.

The contention of the respondent, that it has a perpetual right to maintain a dam at the height of the old dam erected under its original charter, is inconsistent with the purpose and spirit of the St. of 1880. The statute relieved the company from its obligations as a navigation company, and definitely fixed the height at which it could maintain its dam for manufacturing purposes, and made it for the future subject to all the duties and liabilities of manufacturing companies under our laws. The only reasonable implication is, that, if it raises its dam beyond the height then established, it shall, like other manufacturing companies, be liable to respond in damages to a party injured, upon a complaint in the Superior Court under the mill act. By accepting the act, the company waived and abandoned its right under its old charter to build and maintain a dam at a greater height, without compensation to parties injured thereby. The ruling of the Superior Court, therefore, was correct.

The respondent now contends that, as the complainant derives his title from one Severance, to whom the company conveyed in 1851 and 1853, the complainant now “ holds the land subject to such rights of flówage as existed at the time of the sale of the land by the respondent.” The deeds to Severance were deeds in which the company warrants against all incumbrances, and reserves a right of way. The bill of exceptions does not state any of the circumstances of the sale or the condition of the land, or the extent to which it was flowed. Upon the facts stated in this bill of exceptions, we can see no ground upon which it-can be held that there was an implied reservation to flow the land by a dam as high as the former dam. But we do not discuss it, because it does not appear that any question as to the construction and effect of these deeds was raised at the trial.

¡Exceptions overruled.