Smith v. Inhabitants of Concord , 143 Mass. 253 ( 1887 )

C. Allen, J.

By the act of taking “ the waters of Sandy Pond,” on December 1, 1874, the town took all the water of the pond, and was at liberty to draw off the whole of it, by means of pipes large enough for the purpose, and was bound to pay all damages sustained by reason of the taking of the whole of the water of the pond. The fact that the town did not at first put in a pipe large enougli to exhaust all the water of the pond, would not prevent it from doing so afterwards, and would not diminish the damages to which any person injured by the taking of all the water of the pond would be entitled. The right to damages is measured by the quantity of water which the town by its election took and appropriated, not by the quantity actually withdrawn at the outset. Cowdrey v. Woburn, 136 Mass. 409, and cases cited.

By the second taking, on July 12, 1879, the town took the land in the bed of the outlet, and on both sides thereof, along the shore of the pond, for the purpose of , holding and preserving the water; but it did not take any additional water. Indeed, there was no additional water there to take, since the town had taken all the water of the pond in 1874. The time for filing an application for damages for the taking of water had therefore passed, and the ruling of the court was right.

Exceptions overruled.