Worcester Gas Light Co. v. County Commissioners

Holmes, J.

It is a little hard to see how anything is left open to be argued on this report, for it appears that, more than two years before the petitioner took any steps to have its damages assessed, Piedmont Brook “ had been taken by the city for sewerage purposes.” The statement that the brook had been taken means taken under the St. of 1867, o. 106, and therefore imports that whatever was necessary to “ appropriate ” the brook, within the meaning of § 2 of the act, had been done. It would seem equally to signify a “ taking ” from which the two years would begin to run under the St. of 1871, e. 354, § 5. But, if we are to assume that the taking consisted only of the vote of the city council, followed by the construction of sewers through which the water was discharged thereafter, we are of opinion that this was sufficient to set the two years running, even if we assent to the petitioner’s argument that an actual taking in pais was necessary in addition to the vote, and notwithstanding the fact that the water was returned to the natural channel of Mill Brook above the petitioner’s land, and continued to flow through its premises until within two years of the filing of this petition.

An actual withdrawal of the water is not necessary to constitute an actual taking, unless it is expressly required. The case is not like a claim to a prescriptive right which had its beginning in wrong. There the extent of the prescriptive right gained might very well be measured by the extent of the actual wrong done for the necessary time, unaffected by the extent of the claim of right under which it was done. Horner v. Stillwell, 6 Vroom, 307 . But here the city could lawfully gain any right in the stream which it chose to take, and when it did a public act of dominion which was of permanent effect, and which depended on a vote for its justification, the character and extent of the dominion assumed were determined by the vote to which the act thus necessarily referred. This almost follows from Ipswich Mills v. County Commissioners, 108 Mass. 363 , where a partial withdrawal of the water set the time of limitation running as to the whole.

The petitioner admits that notice to' it was not necessary under the act. Cambridge v. County Commissioners, 6 Allen, 134 .

*292 As the opinion which we have expressed disposes of the case, we do not consider the effect of changing the channel of Mill Brook so that it no longer passed through the petitioner’s land. Woodward v. Worcester, 121 Mass. 245 .

Petition dismissed.