City of Auburn v. Union Water Power Co.

Walton, J.

This is a petition for the assessment of damages. It is presented by the Union Water Power Company of Lewiston, and the question is whether, under the circumstances disclosed by the evidence, the company is entitled to damages.

It appears that in 1891, the legislature authorized and empowered the City of Auburn to take water from Wilson Pond sufficient for domestic purposes and the extinguishment of fires and the supply of hotels and livery stables and laundries, and for sprinkling its streets. Priv. and Special Laws, 1891, c. 82.

For water taken under the authority of this act, the Union Water Power Company of Lewiston claims that it is entitled to compensation. The Company claims that it has a superior and paramount right to the entire waters of the pond, “including all the natural flow of the same,” and that, if any portion of the water is diverted and used by the citizens of Auburn for domestic purposes, the Company is entitled to damages. The question is whether this claim can be sustained. It is the opinion of the court that, under the circumstances disclosed by the evidence, the claim cannot be sustained.

It is a settled rule of law in this State and Massachusetts that all great ponds, — that is, ponds containing more than ten acres,— are owned by the state. This is a rule of law peculiar to this State and Massachusetts. It is said to have been derived from the Colonial Ordinance of 1641 — 7. The rule, as stated by Chief Justice Morton, in a recent Massachusetts case, is as follows:—

“ Under the Ordinance, the state owns the great ponds as public property, held in trust for public uses. It has not only the jus privatum, the ownership of the soil, but also 'the jus publicum and the right to control and regulate the public uses to which the ponds shall be applied. The littoral proprietors of land upon the ponds have no peculiar rights in the soil, or in the waters, unless it be by grant from the legislature.” Watuppa Reservoir Co. v. Fall River, 147 Mass. 548 .

*585 In tbe case cited, tbe Reservoir Company had constructed an expensive dam and had paid large sums of money for flowage rights, and had controlled the waters of the Watuppa pond for nearly sixty years. The legislature then authorized the city of Fall River to take water from the pond for domestic uses and the extinguishment of fires, and all other public uses of the city, without liability to pay any other damages than the state itself would be legally liable to pay. The peculiar wording of this statute in relation to damages was undoubtedly intended to test the authority of the legislature to confer upon towns and cities the right to take water from great ponds for domestic purposes without being liable for damages; and the court so treated it; and a majority of the court held that the authority existed. The majority opinion was by Chief Justice Morton. The minority opinion was by Mr. Justice Knowlton.

We have examined the opinions with care. The minority opinion rests apparently upon the assumption that all of the waters of our great public ponds and lakes are dedicated, primarily, to the use of mills, and that no town or city can take any portion of the waters for domestic purposes without being liable in damages therefor to the owners of the mills. The majority opinion recognizes the right of the people to have pure water for domestic use, and affirms the authority of the legislature to permit towns and cities to take water from great public ponds and lakes for the use of their inhabitants without being liable to pay damages to those who want the water for the use of mills.

We think the doctrine of the majority opinion is correct. It is sustained by reason as well as authority. Water for domestic use is a necessity. Man can not exist without it. Water for the use of mills is a convenience only. And there is no conceivable reason why those who want it for domestic use should be compelled to buy it of those who want it for the use of mills.

In Philadelphia v. Collins, 68 Pa. St. Rep. 106, the jury were instructed that every individual residing upon the banks of a stream has a right to the use of the water to drink, and for the ordinary uses of domestic life; and that where large bodies of *586 people live upon the banks of a stream, as they do in large cities, the collective body of the citizens has the same right; and the instruction was held to be correct.

The right to the use of water for domestic purposes is primary, and the right to its use as a mechanical power is secondary; and to the extent that the two rights conflict, its use as a mechanical power must be surrendered. Evans v. Merriweather, 3 Scam. (Ill.) 492.

True, it is sometimes said that there must be no diversion of the waters of a stream; that the riparian proprietors above must allow the water to flow on in undiminished quantities to the riparian proprietors below. But this is not a correct statement of the law. And the inaccuracy of the statement has often been pointed out. The true rule is that there must be no unlawful or unreasonable dimunition or diversion of the water. The diversion and consumption of water for domestic purposes is neither unlawful nor unreasonable. As said by Mr. Justice Dickerson in Davis v. Winslow, 51 Maine, 264, “ water, air, and light are the gifts of Providence, designed for the common benefit of man, and every person is entitled to a reasonable use of each.....A reasonable use is the touchstone to which cases of this description must be subjected.”

And in another case, Mr. Justice Rice said that this right to a reasonable amount of water for domestic purposes necessarily implies a right to diminish the volume of the water. Davis v. Getchell, 50 Maine, 602.

A gallon of water withdrawn from Moosehead lake will diminish the quantity that would otherwise flow down the Kennebec river. But, surely, no one will doubt the right of the people who live near that lake to take and use for domestic purposes a reasonable amount of its waters. Nor can any one believe that such a use would be a wrong to the owners of any of the dams across the Kennebec river. The right of the people living in the vicinity of our great ponds and lakes to a reasonable amount of their waters for domestic purposes is sustained by the rules of the common law of this state, as well as by reason and the principles of natural *587 justice, as the cases cited will show. And it is only of our great public ponds and lakes that we are now speaking. We are not declaring or attempting to define the rights appertaining to wells, springs, rivulets or small ponds. It is only of great ponds and lakes, the titles to which are held by the state for the use of the public, that we are now speaking. And of these great public ponds and lakes, we affirm’that by the rules of the common law of this state, the people are entitled to a reasonable portion of their waters for domestic purposes without being obliged to buy it of the owners of mill-privileges. And we affirm further, that, by virtue of the rule of property derived from the Ordinance of 1641-7, as interpreted in this state as well as Massachusetts, the title to all great ponds, — that is, ponds containing more than ten acres, — is in the state, and that the legislature may confer upon towns and cities the right to take water from such ponds for domestic purposes without making such towns and cities liable for the losses thereby sustained by the owners of mill-privileges. Health is of more importance than wealth, and cleanliness is next to godliness;- and we hold that the right of the people to an abundant supply of pure water, by which their health and cleanliness may be secured, is paramount to the right of mill-owners to have the water for propelling their machinery; and that, to the extent that the two rights conflict, the latter must yield. Of course, private property can not be taken for public use without making compensation for it. But the waters of great ponds and lakes are not private property. They are owned by the state; and the state may dispose of them as it thinks proper.

Wilson Pond is a great pond. Its supply of water is fifteen millions of gallons daily. Of this quantity Auburn probably uses about a half a million of gallons daily. This is only about one-thirtieth of the entire supply. It is a quantity comparatively so small that its withdrawal from the pond does not perceptibly lessen the size of the stream at the outlet. The quantity used by Auburn will probably be somewhat increased in the future. But there is no probability that the quantity used daily will ever exceed a million of gallons. Auburn is a city large in territory; *588 but the number of its inhabitants does not exceed fifteen thousand; and a considerable portion of them do not and never can receive their supply of water from Wilson Pond. But allowing that ten thousand of its inhabitants will at some future day receive their water from the pond, and that each one of these inhabitants will consume a hundred gallons daily; then the quantity will be only a million of gallons, leaving fourteen-fifteenths of the water to flow on to the works of the Union Water Power Company as heretofore. Surely, the Union Water Power Company can not complain that this is an unconscionable or unreasonable division of the water.

But we are asked to consider if the Union Water Power Company has not become entitled to the whole of the waters of Wilson Pond by an adverse use. We do not think the use has been adverse. The Company and its predecessors in title have used the water of the pond, or so much of it a's has flowed out of the pond through its natural channel and become mingled with the waters of the Androscoggin river; but this has been a rightful use. It has had no element of adverseness in it. It has encroached upon no one’s rights, and no one has had a right to suppress it. Such a use can. never ripen into a prescriptive title. Pratt v. Lamson, 2 Allen, 275 . And, besides, the authority of the state to control the waters of great ponds, and determine the uses to which they may be applied, is a governmental power, and the governmental powers of the state are never lost by mere non-use. In the Watuppa case ( 147 Mass. 548 ) the Reservoir Company has had the entire control and use of the waters of the Watuppa ponds for nearly sixty years. But the court held that the legislature might, nevertheless, confer upon the city of Fall River the right to take water from the ponds for domestic purposes without being liable to pay damages.

The Watuppa case was embarrassed by the fact that both parties had charters from the legislature. The Reservoir Company had been chartered as early as 1826, and granted the right to construct a reservoir dam that would raise the water two feet higher than it had before been raised, and to draw off the water in such quantities and at such times and in such manner as it should judge *589 proper. And under authority of this charter the corporation had expended large sums of money and had had the entire use and control of the waters of the ponds for nearly sixty years when the authority to Fall River was granted to take water from the ponds for domestic purposes. And the Reservoir Company claimed that it had thereby become invested with property rights in the entire waters of the ponds of which it could not be divested without compensation. Upon this question the court was divided, three judges holding that the Resevoir Company was entitled to damages and four judges that it was not.

We are embarrassed by no such question. In this case, only one of the parties has a charter from the legislature, and that party is the city of Auburn. The Union Water Power Company is a self-created corporation, organized under the general law. It has no charter from the legislature. It has never asked for and has never obtained from the legislature any property rights or any special privileges in the waters of Wilson Pond. It has no property rights in the waters of the pond which are taxable in the city of Auburn, and we think it has no such rights in its waters as entitles it to damages from the city of Auburn. See Water Power Co. v. Auburn, ante, 60.

The state’s ownership of great ponds, and the authority of the legislature to permit water to be taken from such ponds for domestic purposes without the payment of damages, were affirmed in Fay v. Salem and Danvers Aqueduct, 111 Mass. 27 .

No reason is perceived why the same doctrine should not prevail in this state. The Colonial Ordinance of 1641 — 7 is in force in this state; and it is settled law that by virtue of it, the title to all great ponds is vested in the state. The right of the people to a sufficient quantity of water for domestic purposes is incontrovertible. And when, by permission of the legislature, this supply is taken from ponds which are owned by the state, no reason is perceived why the takers should be required to pay damages to persons or corporations who do not own the water. If water is taken from wells, or springs, or small ponds, or small streams, which are owned by private persons or corporations, of course, *590 compensation must be made. But, if taken from great ponds, which are owned by the state, no reason is perceived why damages should be exacted. Water for use as a mechanical power is important, and should receive reasonable protection. But water for domestic use, and by which the health and cleanliness of the people, and protection against fires, are to be secured, is also important. And when water for both purposes is drawn from the same public fountain, no reason is perceived why either of the parties should be required to pay damages to the other.

Tested by the rules of the common law, which require a reasonable use, and, in case of conflict, a just and fair division of water, and the claim of the Union Water Power Company must fail. Tested by the rules of law derived from the Colonial Ordinance of 1641 — 7, and the result is the same. No property rights of the Union Water Power Company have been invaded by the city of Auburn. The water which the city of Auburn is using is a dona-' tion from the state. The claim of the Union Water Power Company that it is entitled to the entire waters of Wilson Pond is not sustained by the evidence; and it is the opinion of the court that its claim to recover damages must be rejected.

Petition dismissed. No costs for either party.