Flagg v. Inhabitants of Concord , 222 Mass. 569 ( 1916 )

Rugg, C. J.

This is a petition for the assessment of damages caused by a taking of the waters of Nagog Pond and the land under the same. Nagog Pond in its natural state was a great pond. Its normal level was raised by a dam in 1834, and about five acres of land thus flooded belonged to the petitioner Flagg, subject to the easement of flowage which so had been acquired by prescription. This land was taken by the respondent.

The words of the taking, so far as here material, were of "all the waters” of the pond with its affluents and effluents, with certain exceptions, and “The land under said Nagog Pond up to the overflow level of the existing dam at the outlet . . . and all rights of flowage vested in or acquired by the present owners of said dam.” It was declared that the taking was “for the purposes mentioned in said act and more particularly for laying out, establishing, operating and maintaining an additional water supply system” for the defendant town. The act referred to, St.'1884, c. 201, enumerates in § 2 the purposes for which land may be taken, as follows: “for raising, holding, diverting, purifying and preserving such waters,” and for the erection thereon of “proper dams, reservoirs, buildings, fixtures and other structures.”

In general the right to take lands and interests in lands is limited by the public need. There are no words in this act expressly conferring the power to take land in fee. It is not an inherent and absolute necessity in all cased that lands to be used for water supply be taken in fee. The quality of the estate to be taken commonly rests with the Legislature, and, in the absence of its definite declaration, only such estate as is necessary to the fulfilment of the public need passes under a taking. Sometimes a fee may be necessary by implication. Winnisimmet Co. v. Grueby, 209 Mass. 1. But the fee often, perhaps generally, is not required for a water supply. Newton v. Newton, 188 Mass. 226. Perley v. Cambridge, 220 Mass. 507, 513. The purpose of the taking fixes the extent of the use which is permissible thereunder. The owner of the fee retains the right to use the land for all purposes not inconsistent with the full enjoyment of the right taken by the public. One of the manifest purposes for which land is taken on the shore of a body of water appropriated for a municipal water supply is, as stated in the instant statute, to protect and preserve the purity of the water. A necessary incident of such preservation is the right to the exclusive use of the surface of the ground. Everybody else may be debarred from its confines. Whatever rights are acquired by the taking may be exercised at once. It is of no consequence when in fact they are exercised. This is the precise point decided in Newton v. Perry, 163 Mass. 319. The principle is thoroughly settled and finds illustration in many cases. See, for example, Ham v. Salem, 100 Mass. 350; Howe v. Weymouth, 148 Mass. 605; Lincoln v. Commonwealth, 164 Mass. 1,10; Googins v. Boston & Albany Railroad, 155 Mass. 505; Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1, 9; Walpole v. Massachusetts Chemical Co. 192 Mass. 66. The whole beneficial use of the land in effect is taken. The petitioners’ damages must be assessed now for all injuries sustained by the taking. Future exercise of rights included within the scope of this taking, although suffered to lie dormant for a considerable time, affords no ground for an additional assessment of damage in the future. The extent of the petitioners’ damage is measured by the extent of the rights included within the taking by the respondent, and not by the extent of the exercise of such rights.

There is nothing in the circumstance, that the land taken from the petitioner Flagg was adjacent to a great pond, which gives him further rights to pass and repass over it than he would have had if the water taken had been that of a private reservoir. When taken by the respondent for the purpose stated, the right to exclude everybody, including the petitioner, attached to the respondent. See Slater v. Gunn, 170 Mass. 509.

The character of this taking distinguishes it from takings of easements for the maintenance of underground or other structures which manifestly leave a considerable beneficial use in the owner of the fee. Butchers Slaughtering & Melting Association v. Commonwealth, 169 Mass. 103. Perley v. Cambridge, 220 Mass. 507, 513, and cases there collected.

It therefore was error for the judge to deny the petitioners’ third request, to the effect that the respondent took the right to the exclusive possession of the land of Flagg, and to leave to the jury the determination of the question as a fact, what was the extent of the right taken by the respondent, whether it was exclusive in its nature and whether the petitioner might not still have a right of travel across the land taken. The meaning and scope of an instrument of taking, so far as it affects private rights of property, is a question of law to be decided by the court and not a fact to be passed upon by a jury. See Selectmen of Natick v. Boston & Albany Railroad, 210 Mass. 229.

Sometimes, when a taking has been made of the waters of a great pond alone, it has been held that the rights of one of the public in its waters under the colony ordinance was not shown to be incompatible with the uses to which the water had been appropriated and that it could not be so ruled as matter of law under all circumstances. Rockport v. Webster, 174 Mass. 385. That has no application to the present case. The pétitioner is not seeking damage for any interference with the rights he has exercised as one of the public.

The act authorizes the respondent to take “all the waters of Nagog Pond” and the instrument of taking was coextensive with the power. The circumstances of the case at bar and the terms of this act distinguish it from Framingham Water Co. v. Old Colony Railroad, 176 Mass. 404, while the words of the taking are different from those in Fosgate v. Hudson, 178 Mass. 225.

It follows that the petitioner Flagg was deprived of all private rights in the waters of the great pond because the taking excluded him from access to those waters. His private rights in this regard were only those which resulted from his ownership of the fee of the five acres over which the waters of the pond flowed.by reason of the dam erected at the outlet of the pond in 1834. Paine v. Woods, 108 Mass. 160, 173. Barker v. Bates, 13 Pick. 255, 261. Had it not been for the flowage of water over his land, the petitioners would have been entitled to no damage for the taking of the water. Fay v. Salem & Danvers Aqueduct Co. 111 Mass. 27. Attorney General v. Herrick, 190 Mass. 307. The petitioner Flagg had no right, so far as appears, to the continued maintenance of the dam. It might have been taken down by its owner without incurring any liability to that petitioner. But its existence was a circumstance to be considered in estimating his damage. Lakeside Manuf. Co. v. Worcester, 186 Mass. 552, 556. Of course he had no title to the waters of the great pond even so far as they overflowed land of which he owned the fee. His right was “at best of a precarious nature. Such water is hardly susceptible of absolute ownership or of any other than a usufructuary right, capable of enforcement and enjoyment only while it remains within the domain of its possessor.” Lynnfield v. Peabody, 219 Mass. 322, 332. See Sprague v. Minon, 195 Mass. 581. Even these insecure rights must be exercised with reference to like rights by others similarly situated, to the rights of the general public, and to the rights of lower riparian owners. Stratton v. Mt. Hermon Boys’ School, 216 Mass. 83. But such as they were, the plaintiff has been deprived of them by the taking of the defendant.

The diagram showing the height of the water in the pond since the taking had no bearing upon the real issues between the parties. The date established by the act as the one as of which damages must be assessed is the one which fixes the rights of the parties. St. 1884, c. 201, § 7. Subsequent conduct is immaterial on that issue. Imbescheid v. Old Colony Railroad, 171 Mass. 209.

The grounds of this decision render unnecessary the consideration of that portion of the charge as to the possibility that the petitioners’ rights might be affected by police regulations passed after the taking. That subject becomes immaterial.

Exceptions sustained.