Where the federal question is distinctly set up in the bill, and
insisted on at every stage, and the state court could not have
decided as it did without overruling the claim, this Court has
jurisdiction to review the judgment on writ of error.
In determining whether a statute of a state is constitutional,
this Court cannot wholly neglect the long settled law and common
understanding of that state, and will not, under the Fourteenth
Amendment, upset what has long been established and accepted. Even
the incidents of ownership may be cut down by the peculiar laws and
usages of a state.
Under the Massachusetts Mill Act, the right of the lower owner
only becomes complete when the land is flowed, and then it is only
a right to maintain a dam subject to paying the upper owners for
harm actually done in pursuance of the terms of the act. In a suit
at equity brought by the upper owner to restrain the lower owner
from building a dam, the state court having declared generally that
the Mill Act is valid, but not having definitely expressed itself
as to its constitutionality, and as the opinion of this Court may
depend upon the interpretation of the act by the state court,
held that the bill should be dismissed without prejudice
or retained until plaintiff's rights have been determined in an
action for damages under the statute pending in the state
court.
The facts are stated in the opinion.
Page 201 U. S. 150
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity to restrain the defendants in error
from flooding the plaintiff's land by means of a dam erected under
the Massachusetts Mill Act. The injunction is asked on alternative
grounds -- either that the mill act does not authorize the dam or
that, if it does, then it is contrary to the Fourteenth Amendment
of the Constitution of the United States. The case was tried in the
superior court and reported to the Supreme Judicial Court, which
held that the statute authorized the dam and was valid and ordered
the bill be dismissed. 186 Mass. 89. A decree was entered in
accordance with the rescript, and the case then was brought here.
The claim under the Constitution was distinctly set up
Page 201 U. S. 151
in the bill, and was insisted on at every stage. The court could
not have decided as it did without overruling that claim, so that
the jurisdiction of this Court is clear, although it was
denied.
The dam in question is built across the Chicopee River, a
nonnavigable stream at Red Bridge. It was begun, in pursuance of a
long previous determination, an August 3, 1899, and was completed
within a reasonable time. The plaintiff owned a mill and dam more
than two miles above, and land below its dam on the two sides of
the watercourse, down to within about two miles from the principal
defendant's dam. On April 4, 1900, the plaintiff determined to
build a dam near its lower boundary, and began the work of
construction on August 11 of the same year. This dam was completed
before, although it was begun after, the defendants', and will be
rendered nearly or wholly useless by the backflow from the
defendants' structure. The plaintiff's original dam and mill will
not be interfered with. The Supreme Judicial Court decided that,
under the statute then in force, Pub.Stats., c. 190, § 2, the
principal defendant, herein called the defendant, acquired the
prior right, and that the statute was constitutional. It postponed
the consideration of the plaintiff's rights in reference to
damages, but decided that the provision for compensation was
adequate to satisfy whatever rights the plaintiff might have.
The only question which it is necessary for us to consider is
whether the act as construed violates the Fourteenth Amendment.
General objections to mill acts as taking property for private use
or on other grounds have been disposed of by
Head v. Amoskeag
Manufacturing Co., 113 U. S. 9.
See
further Clark v. Nash, 198 U. S. 361;
Strickley v. Highland Boy Gold Mining Co., 200 U.
S. 527. Such acts have been in force in Massachusetts
ever since an act of 1714, c. 15, 1 Prov.Laws, 729. The practice
sanctioned by them would seem, from the recitals of that act, to
have been still older. It may have begun with grist mills, and may
have had its justification in the public needs which exempted from
military watchings
Page 201 U. S. 152
and wardings one miller to each grist mill, Act of 1693, c. 3, §
13, 1 Prov.Laws, 130, and in the public duties which were expressed
in the Act of 1728, c. 6, § 3, 1 Prov.Laws, 497. But, at all
events, the liability of streams to this kind of appropriation and
use has become so familiar a conception in New England, where water
power plays as large a part as mines in Utah, that it would not be
very extravagant to say that it enters as an incident into the
nature of property in streams as there understood.
However, the liability of upper land to be flowed is not a
liability to be flowed without payment. The principal objection
made to the law is that it makes no adequate provision for payment
if it is construed as it has been construed by the state court.
There has been no substantial change in the form of this provision
for the better part of a century. It reads:
"A person whose land is overflowed or otherwise injured by such
dam may obtain compensation therefor upon his complaint before the
superior court for the county where the land or any part thereof
lies; but no compensation shall be awarded for damage sustained
more than three years before the institution of the complaint."
Pub.Stats. c. 190, § 4. The jury is to take into consideration
damage to other land as well as the damage to the land overflowed.
Section 14. It is to assess the damages sustained within three
years, § 16, and to determine what sum, to be paid annually, would
be reasonable compensation for the damages that may be occasioned
thereafter, and also a sum in gross for all damages from the use of
the dam in the manner fixed by it, § 18, the jury having power to
regulate the height of the dam, § 17. The complainant is given an
election to take the gross sum, in which case the owner of the dam
loses all benefit of the act after three months until he pays.
Sections 19, 20. Otherwise the complainant has an action for the
annual compensation and a lien on the dam and lands used with it.
Sections 21
et seq. And finally, if dissatisfied with the
amount of the annual compensation, he may bring a new complaint.
Section 30.
Page 201 U. S. 153
In considering whether these provisions are sufficient, it is
important to know exactly what the upper owner loses by the dam.
The state court lays it down that there is no taking under the
right of eminent domain. 186 Mass. 95. We assume this to mean what
often has been said with regard to the mill acts, that under them
no easement or title of any kind is gained in or over the upper
land, and that the water could be diked out,
Storm v. Manchaug
Co., 13 Allen, 10, 13;
Lowell v. Boston, 111 Mass.
454, 466, although the language has not been uniform, and it seems
to have been held otherwise when the damages are paid in gross.
Isele v. Arlington Five Cents Savings Bank, 135 Mass. 142.
Taking the law to be as stated by the court, it would follow that
only the damage physically suffered is to be paid for. When a title
is taken, for instance, to the waters of a stream, it is held that
the whole value of the title must be paid, although a considerable
use may be left in fact to the party aggrieved.
Howe v.
Weymouth, 148 Mass. 605;
Imbescheid v. Old Colony Railroad
Co., 171 Mass. 209. Flowage under the mill acts seems to be
regarded as presenting the converse case. As no title is gained to
have the water on the upper land, the dam owner pays only for the
harm actually done from time to time. If this is so, somewhat less
elaborate provisions might be justified than could be sustained
when the title is lost. So far as security goes, looking to the
reasonable probabilities in such cases, it would seem to be
sufficient. We must bear in mind, as we presume the state court
meant to suggest by its citation of the case of
Brickett v.
Haverhill Aqueduct Co., 142 Mass. 394, that -- as was said
there in words that need but little change -- if other remedies
proved ineffectual, the "court would, by proceedings in equity,
restrain the defendant from a further use of the water, and, if
necessary, order the removal of the dam." In other words, the right
to an injunction, if necessary, is taken into account in
Massachusetts in deciding whether the security for payment is
sufficient, even when there is a taking by eminent domain.
See
Page 201 U. S. 154
also Attorney General v. Old Colony Railroad, 160 Mass.
62, 90;
Manigault v. Springs, 199 U.
S. 473,
199 U. S.
485-486. This seems an answer to the objection that, in
the state of the business of the courts, a judgment for past
damages may not be recorded for several years, that the defendant
may be insolvent, the dam inadequate security, and valuable
improvements destroyed. It is said that the lower owner might
abandon his dam and thereby escape liability for gross damages
after an election to take them. But we presume that, in that case,
he would be held to pay the temporary damage caused, and the case
would stand like one where the choice had been the other way.
Hunt v. Whitney, 4 Met. 603, 608.
Again, we cannot wholly neglect the long settled law and common
understanding of a particular state in considering the plaintiff's
rights. We are bound to be very cautious in coming to the
conclusion that the Fourteenth Amendment has upset what thus has
been established and accepted for a long time. Even the incidents
of ownership may be cut down by the peculiar laws and usages of a
state.
Eldridge v. Trezevant, 160 U.
S. 452,
160 U. S. 466.
For a century, the remedy given by the statute has been supposed to
be sufficient, and in 1832 it was decided to be so under a somewhat
similar statute, which was held to create a servitude.
Boston
& Roxbury Mill Corporation v. Newman, 12 Pick. 467. We are
not prepared to pronounce the statute void on the ground that the
security for payment is not enough.
But it is argued that not all the serious damage which is or may
be suffered is compensated. It is said that only damages caused by
flowing can be recovered. But the cases cited only show that
damages regarded as too remote on general principles are disallowed
(
Fuller v. Chicopee Manufacturing Co., 16 Gray, 46), or
that, not being within the protection of the mill acts, they are to
be recovered by an action at common law.
Eames v. New England
Worsted Co., 11 Met. 570. And the statute now expressly
provides for a "person whose land is overflowed or otherwise
injured," § 4, and that the jury
Page 201 U. S. 155
shall take into consideration any damage occasioned to other
land, as well as that to the land overflowed. Section 14. A graver
doubt is raised by another argument. It is decided that the prior
right is gained by the dam first begun, provided it is completed
and put in operation within a reasonable time. If, as in the
present case, the upper owner builds a dam in the meantime, it may
be held that he is entitled to no compensation for its being
rendered useless, even if he builds without notice of the earlier
appropriation, as well might happen. On the other hand, if he
refrains from using his land as he desires, he may be denied
compensation for being deprived of the use of his land. We do not
perceive why the latter result should follow. As to the former, it
may be held that, notwithstanding the priority of the lower owner,
the upper owner has a right to improve his land until it actually
is flowed. Otherwise the former might have it in his power to keep
the latter in suspense for a year or two, and then abandon his dam.
Because the plaintiff was too late to prohibit the defendant's dam,
it does not follow that it may not be entitled to all the damages
which it suffers when the flowing takes place. That it would be
entitled to them perhaps may be inferred from
Baird v.
Wells, 22 Pick. 312, decided under a different statute, but
still applicable so far as this principle is concerned.
See
further Storm v. Manchaug Co., 13 Allen 10, 15;
Edwards v.
Bruorton, 184 Mass. 529, 532.
The state court has confined itself to a general declaration
that the act is valid, and has not expressed itself definitely upon
these points. Yet our opinion upon the constitutional question may
depend upon its interpretation of the statute in a case which could
not be brought here. Obviously it would be unjust that the
plaintiff should be concluded upon a doubtful construction assumed
by us which the state court hereafter may not adopt. Therefore it
seems to us proper that this bill should be dismissed without
prejudice, or retained until the plaintiff's rights shall have been
determined in the proceedings for damages under the statutes, which
it is admitted have been
Page 201 U. S. 156
brought. The objection to the act on the ground of want of
notice does not impress us except in its bearing upon the point
just mentioned. The right of the lower owner only becomes complete
when the land is flowed, and as, even then, it is not a right to
maintain the water upon the plaintiff's land, but merely a right to
maintain the dam, subject to paying for the harm actually done, we
see nothing to complain of in that regard.
Decree modified and affirmed.