McLeod v. South Deerfield Water Supply District , 193 Mass. 6 ( 1906 )

Sheldon, J.

By the second section of c. 486 of the St. of 1902 the respondent was authorized to “ take by purchase or otherwise and hold the waters of Roaring Brook and of any or all of its tributaries in the towns of Deerfield and Whately, except that part of said brook and its tributaries which lies west of and above the main road leading from Conway village to West Whately; and the waters of any springs or other sources on the watershed of said brook, with the water rights connected therewith, except that part which lies west of and above the main road leading from Conway village to West Whately.” The respondent has made a taking under this statute, and in its certificate filed under § 3 of the statute has described the waters taken as “ all the waters of Roaring Brook and its tributaries ” above a dam and reservoir constructed by the respondent in the town of Whately, “ and extending from that point up said brook to the west side of the main road ” aforesaid. It now contends, as it asked the judge at the trial to rule, that under the statute quoted it had the right to take only that part of the waters of Roaring Brook and its tributaries which lies in the towns of Deerfield and Whately, and that no damage can be assessed in these proceedings for the taking of any other water. But if this construction were adopted, it would lead to the absurd conclusion that while the respondent’s right to take the waters of Roaring Brook and its tributaries was thus limited, yet it was given the express right to take all the sources of water and water rights on the whole watershed of the brook except the part lying west of and above the main road mentioned, including of course that part of such watershed which is situated in the town of Conway as well as in Deerfield and Whately; that is, the respondent would not have the right to take any of the waters of the brook in Conway, but could take such waters in that part of Conway which lies east of the main road mentioned while they were merely on the watershed of the brook and before they actually had entered the channel of the brook and become a part of its waters. Such a construction as this could not be adopted unless imperatively required by the words of the statute; and in this case it is made impossible by the fact that in the residue of the section the authority given to the respondent to take the lands and easements and construct the dams and other structures and lay and maintain the aqueducts necessary to provide and maintain complete and effective waterworks is limited to the towns of Deerfield and Whately. The right given in terms to make a taking in the watershed ought not to be taken away or made nugatory by a merely verbal construction. We are of opinion accordingly that by the proper construction of this statute the respondent was authorized to take, as it has taken, all the waters of Roaring Brook and its tributaries except that part thereof lying west of and above the main road already mentioned, and all the sources and water rights on the watershed of said brook, with the same exception; but that the actual taking of the water, the construction of such dams, reservoirs, and other works as might be necessary, should be made only in the towns of Deerfield and Whately. By this construction effect is given to all the words of the statute; and we agree with the respondent that this should be done.

Accordingly the respondent’s request for a ruling in accordance with its contention already stated was'rightly refused, and the instruction given as to this question was correct.

The other exceptions taken we treat them as waived. at the trial were not argued, and

Exceptions overruled.