1. By the settled law of Massachusetts, the rights of fishery in
such rivers as the Connecticut, even above the point where it is
navigable for boats or rafts, are public rights, and, unless there
be some express provision to the contrary, are subject to such
reasonable regulations as the state may make for their protection,
including the right to require of persons who own or build dams
that they construct such fishways as will enable migratory fish to
pass from the lower to the higher level of the water occasioned by
such dams.
2. The provision of the Revised Statutes of Massachusetts,
chapter 44, section 23, and General Statutes, chapter 68, section
41, declaring that acts of incorporation shall be subject to
amendment, alteration, or repeal, at the pleasure of the
legislature; reserves to the legislature the authority to make any
alteration or amendment of a charter granted subject to it, which
will not defeat or substantially impair the object of the grant or
any rights vested under it and which the legislature may deem
necessary to secure either that object or other public or private
rights.
3. After a manufacturing corporation, chartered with authority
to construct and maintain a dam across a river, paying damages to
the owners of fishing rights above, and whose charter does not
expressly exempt it from maintaining the dam without a fishway, and
is subject under the provision above quoted to amendment,
alteration, and repeal at the pleasure of the legislature, has paid
such damages and constructed the dam without a fishway, so as to
destroy the fishing rights above and to impair similar rights below
(for the injury to which last no compensation has ever been made or
provided), that corporation, or any other which purchases its dam
under the authority of a subsequent statute, may be
constitutionally required by the legislature to construct a fishway
in the dam to the satisfaction of commissioners appointed by the
legislature for the purpose.
The "General Laws" [
Footnote
1] of the state just named provide that every act of
incorporation passed since the 11th of March, 1831,
"Shall at all times be subject to amendment, alteration, or
repeal
at the pleasure of the legislature."
This general law being on the statute book, the legislature of
the state in 1848 passed an act to incorporate the Hadley
Page 82 U. S. 501
Falls Company for the purpose of constructing and maintaining a
dam across the Connecticut River, and of creating a water power to
be used by the corporation. The capital stock was fixed at
$5,000,000, and it could hold $500,000 worth of real estate. The
corporation was authorized and empowered "to construct and maintain
a dam across the river" at a point named sufficient to raise the
water to a height not exceeding one specified. The act in its
fourth section read thus:
"The said corporation shall pay such damages to the owners of
the present fishing rights existing above the dam which the said
company is herein empowered to construct as may be awarded by the
county commissioners of the counties in which said rights
exist."
And a mode was provided by which either the company "or any
owners of the said fishing rights" might at any time proceed to
determine the damages done to them. Nothing was said about damages
done to fishing rights below the dam, nor about making or
maintaining or not making and maintaining any "fishway." No power
was given to condemn the land of others for the site of the dam or
for any other purpose.
The Hadley Falls Company built at great expense a dam, but
without any fishway in it. Before this dam was built, shad were
accustomed to pass up the river beyond the dam, and were of value
to the private owners of riparian fishing rights for sale as food,
and a source of income to such proprietors both above and below the
dam. The dam, however, by preventing the passage of the fish up the
river, destroyed the fishing rights above. And compensation to a
large amount was made to the owners of fisheries above the dam for
the injuries done to their said rights.
After the dam was built, and owing to it, the number of shad in
the river below decreased in a small but appreciable degree, the
dam preventing them from passing to their former spawning grounds
above, and to some extent causing them not to return to the river
after their annual passage to
Page 82 U. S. 502
the sea. No owners of fishing rights below the dam had, however,
ever claimed damages on this account.
On the 31st of January, 1859, the Hadley Company having failed,
the same legislature passed an act incorporating the
Holyoke Water Power Company, "for the purpose of upholding
and maintaining the dam across the Connecticut River,
heretofore constructed by the Hadley Falls Company," and
gave to the new corporation full power
"to purchase, take,
hold, receive, sell, lease, and
dispose of
all and any part of the
estate, with
all the water
power, water
courses, water
privileges, dams, rights, easements, and appurtenances
thereto belonging, or therewith connected, which have at any time
heretofore belonged to the Hadley Falls Company."
The part of the Connecticut River where this dam was constructed
runs through the State of Massachusetts, and is not navigable.
In this state of things, the legislature passed in 1866 and
subsequently, certain statutes, which authorized the commissioners
of fisheries of the state to examine the several dams on the rivers
of Massachusetts, and after notice to the owners thereof, to
determine and define the mode and plan upon which suitable and
sufficient fishways should be constructed. The statute regulated
the plans, methods &c., and provided that if any proprietor of
any dam should refuse or neglect to agree with the commissioners to
build the fishways for thirty days after a plan was duly furnished
to him, the commissioners might build the same at his expense.
Under and in pursuance of this legislation, the Holyoke Company was
required to build a fishway in their dam. The fishway required was
one that would cost about $30,000, and, as appeared, would not
diminish the water power of the company except when they desired to
add to it by what are known as "flash boards." The company refused
to comply with the requirement, contending that the acts of
incorporation to the two companies constituted contracts, that by
the payment of damages to the owners of fishing rights
above the dam the Holyoke Company had the right to
maintain "
the dam," theretofore constructed by the
Hadley
Page 82 U. S. 503
Company, and that the acts of 1866 &c., were laws impairing
the obligations of contracts, and so in violation of the federal
Constitution. The court below, on a proceeding authorized by the
statute to make them do so, adjudged otherwise, and its judgment
was now here for review.
Page 82 U. S. 506
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Rivers, though not navigable even for boats or rafts, and even
smaller streams of water, may be and often are regarded as public
rights, subject to legislative control, as the means for creating
power for operating mills and machinery or as the source for
furnishing a valuable supply of fish, suitable for food and
sustenance. Such water power is everywhere regarded as a public
right, and fisheries of the kind, even in waters not navigable, are
also so far public rights that the legislature of the state may
ordain and establish regulations to prevent obstructions to the
passage of the fish, and to promote the usual and uninterrupted
enjoyment of the right by the riparian owners. Proprietors of the
kind, if they own both banks of the water course and the whole soil
over which the water of the stream flows, may erect dams extending
from bank to bank to create power to operate mills and machinery,
subject to certain limitations and conditions, and may also claim
the exclusive right of fishery within their territorial limits,
subject to such regulations as the legislature may from time to
time ordain and establish. Persons owning the whole of the soil
constituting the bed and banks of the stream are entitled to the
whole use and profits of the water opposite their land, whether the
water is used as power to operate mills and machinery or as a
fishery, subject to the implied condition that they shall so use
their own right as not to injure the concomitant right of another
riparian owner, and to such regulations as the legislature of the
state shall prescribe. Where such a proprietor owns the land on one
side only of the stream, his right to the land and to the use of
the water,
Page 82 U. S. 507
whether used as power to operate mills and machinery or merely
as a fishery, extends only to the middle thread of the stream, as
at common law, and is subject to the same conditions and
regulations as when the ownership includes the whole soil over
which the water of the stream flows. Authority to erect dams across
such streams for mill purposes results from the ownership of the
bed and the banks of the stream, or the right to construct the same
may be acquired by legislative grant in cases where the legislature
is of the opinion that the benefit to the public will be of
sufficient importance to render it expedient for them to exercise
the right of eminent domain and to authorize such an interference
with private rights for that purpose. Lands belonging to
individuals have often been condemned for such purposes, in the
exercise of the right of eminent domain, in cases where, from the
nature of the country, mill sites sufficient in number could not
otherwise be obtained, and that right is even more frequently
exercised to enable mill owners to flow the water back beyond their
own limits in order to create sufficient power or head and fall to
operate their mills. Concomitant with the authority to erect such
dams for such purposes over the beds of watercourses, as resulting
from the title to the banks and bed of the stream, is also the
exclusive right of fishery, which also has its source in the same
ownership of the soil, and the better opinion is that it is not
divested or extinguished by any legislative act condemning the land
to the use of another for mill purposes unless the words of the
grant conferring the authority to construct the dam plainly
indicate that such was the intention of the legislature. Water
rights of the kind, whether the streams are used for mill purposes
or merely as fisheries, are justly entitled to public protection,
as they are in many cases of great value to the community where
they exist, but they are the source of many conflicting interests
which the state legislatures as well as the courts have found it
difficult to adjust, as appears from the countless efforts which
have been made in that behalf without complete success.
Page 82 U. S. 508
Certain persons, their associates and successors, on the
twenty-eighth of April, 1848, were incorporated by the name of the
Hadley Falls Company, for the purpose of constructing a dam across
the Connecticut River, and one or more locks and canals, in
connection with the said dam, to create a water power to be used
for manufacturing and mechanical purposes, and also for the purpose
of navigation, with all the powers and privileges and subject to
all the duties, liabilities, and restrictions set forth in the
thirty-eighth and forty-fourth chapters of the revised statutes of
the state. [
Footnote 2] Power
and authority are given to said corporation to construct and
maintain a dam across said river at South Hadley, at any point
between the present dam of the proprietors of the locks and canals
and the lower locks of the said proprietors, of a height sufficient
to raise the water to a point not exceeding the present level of
the water above the dam of the said proprietors; and the farther
provision is that the corporation shall pay such damages to the
owners of the present fish rights above the dam to be erected as
shall be awarded by the county commissioner. Pursuant to the act of
incorporation the stockholders accepted the charter, constructed
the dam, paid certain damages to the owners of fish rights above
the dam as constructed, and expended, as the respondents allege,
more than two millions of dollars, including the cost of the dam
and the damages paid to parties adversely interested, in
constructing their improvements, and failed in business. New
parties acquired the title to the dam and the other improvements,
and on the thirty-first of January, 1859, the respondents in this
case, as such new proprietors, their associates and successors,
were incorporated by the name of the Holyoke Water Power Company,
and they were empowered to uphold and maintain the dam and other
improvements constructed by the prior company, and to erect and
maintain a water power to be used for the same purposes as those
described in the prior charter, with the same powers and privileges
and subject to the same liabilities
Page 82 U. S. 509
and restrictions. [
Footnote
3] Special power was conferred upon the governor, by and with
the advice and consent of the council, by the act of the fifteenth
of May, 1866, to appoint commissioners of fisheries in the said
river and one other river, to hold their offices for five years
unless sooner removed, and it was made their duty by the same act
forthwith to examine the several dams on said rivers in said state,
and after notice to the owners of the dams, to determine and define
the mode and plan by which fishways shall be constructed, suitable
and sufficient to secure the free passage of salmon and shad up
said rivers during their accustomed seasons. Said commissioners are
also authorized to agree with the proprietors of such dams to
construct at their own expense said fishways according to the plans
adopted, if the proprietors consent so to do, and if they fulfill
the agreement and the fact is duly certified to the secretary of
state, the provision is that the same, for the period of five
years, shall be taken and deemed as in lieu of the fishways which
such a proprietor is now required by law to keep and maintain for
that purpose. Unless the proprietor of such a dam shall agree with
the commissioners within thirty days from the time he is so
furnished with the plan to build such fishway in the manner
prescribed, the commissioners are authorized to construct the same
in behalf of the state, and in that event the provision is that the
expense shall be a charge against the owner of such dam, and the
same may be recovered of the proprietor in an action of contract in
the name of the state, or the commissioners may enforce the
construction of such a fishway, by a bill in equity, to compel a
specific performance. [
Footnote
4] Due notice having been given by the complainants, as such
commissioners, to the respondents as the owners of said dam, of
their intention to examine the dam pursuant to the provisions of
the aforesaid acts of the legislature, they proceeded to perform
that duty and determined and defined the mode and plan in which
Page 82 U. S. 510
the fishway should be constructed therein, suitable and
sufficient to secure the free passage of salmon and shad over the
dam and up the river during their accustomed seasons. They also
furnished the respondents with the plan and specifications of such
fishway, and filed a copy of the same in the office of the
secretary of state, and requested the respondents to construct such
a fishway or to agree with them as such commissioners to comply
with that requirement, but it appears that the respondents refused
and neglected so to do, insisting that the state had no power or
right to require them to build such a fishway. Entirely different
views were entertained by the complainants, and they instituted the
present suit to compel the corporation respondents to comply with
that requirement, and the state court entered a decree for the
complainants. [
Footnote 5]
Dissatisfied with that decree, the respondents sued out the present
writ of error and removed the cause into this Court.
Ample power was vested in the first company to hold real estate,
not exceeding five hundred thousand dollars in value, but their act
of incorporation did not give the company any authority to condemn
the real estate of another to any extent or for any purpose. They
were required to "pay such damages to the owners of present fish
rights existing above the dam" as should be awarded by the county
commissioners of the counties in which said rights existed, and
they might at any time apply to said commissioners to proceed,
ascertain, and determine the damages to said fish rights, subject,
however, to an appeal to a jury from such assessment, as in cases
of assessment of damages for land taken for highways. Damages for
injuries to fish rights above the dam were to be ascertained and
assessed, but no authority was conferred to condemn the land of
another for the site of the dam or for any other purpose, nor was
any provision made to ascertain and assess the damages to fish
rights below the dam, nor does either charter contain a provision
exempting
Page 82 U. S. 511
the builders and owners of the dam from the obligation to
construct suitable and sufficient fishways for the free passage of
fish up the river during their accustomed seasons.
None of these propositions is controverted, but the respondents
insist that the acts of the legislature under which they have been
required to make the fishways in question impair the obligation of
the contract contained in the charter incorporating their grantors,
and that those acts are inoperative and void as contravening the
article of the Constitution which prohibits the states from passing
any law impairing the obligation of contracts.
Such a charter, when accepted by the corporators, is undoubtedly
a contract that the powers, privileges, and franchises granted
shall not be restrained, controlled, or destroyed without their
consent unless a power for that purpose is reserved to the
legislature in the act of incorporation or in some prior general
law, in operation at the time the act of incorporation was passed.
[
Footnote 6] Private charters
of the kind are held to be contracts, because they are based for
their consideration on the liabilities and duties which the
corporators assume by accepting the terms therein specified, and
the general rule is that the grant of the franchise on that account
can no more be resumed by the legislature or its benefits
diminished or impaired, without the assent of the corporators, than
any other grant of property or legal estate, unless the right to do
so is reserved in the act of incorporation or by some immemorial
usage or general law of the state, which was in operation at the
time the charter was granted. [
Footnote 7] Charters of private corporations duly
accepted, it must be admitted, are executed contracts, but the
different provisions, unless they are clear, unambiguous, and free
of doubt, are subject to construction, and their true intent and
meaning must be ascertained by the same rules of interpretation as
other legislative grants. Repeated decisions
Page 82 U. S. 512
of this Court have established the rule, that whenever
privileges are granted to a corporation and the grant comes under
revision in the courts, such privileges are to be strictly
construed against the corporation and in favor of the public, and
that nothing passes but what is granted in clear and explicit
terms. [
Footnote 8] Whatever is
not unequivocally granted in such acts is taken to have been
withheld, as all acts of incorporation and acts extending the
privileges of corporate bodies are to be taken most strongly
against the corporations. [
Footnote
9]
Evidently the right of fishery, as well as the right to use the
water of a stream for mill purposes, is the subject of private
ownership, and when held by a good title, the one as much as the
other is a vested right, and both alike are entitled to public
protection, and are subject in a certain sense to legislative
regulation and control. Difficulties in every case attend the
proper adjustment of such rights, as the complete enjoyment of the
one may interfere with the corresponding enjoyment of the other,
but the presumption is, in construing any regulation upon the
subject, that the framers of the regulation did not intend to allow
either party to disregard the rule that he should so use his own
property as not to injure the property of the owner of the other
right.
Ownership of the banks and bed of the stream, as before
remarked, gives to the proprietor the exclusive right of fishery,
opposite his land as well as the right to use the water to create
power to operate mills, but neither the one nor the other right nor
both combined confer any right to erect obstructions in the river
to prevent the free passage of the fish up and down the river at
their accustomed seasons, as such obstructions would impair and
ultimately destroy all such rights owned by other proprietors both
above and below the obstruction on the same stream. Authoritative
support to
Page 82 U. S. 513
these views is found in the judicial decisions and legislative
enactments of the state throughout her history, commencing even
before the Revolution and continued in an unbroken series to the
present time. [
Footnote
10]
Undoubtedly each proprietor of the land adjoining such a river
or stream has in that state a several or exclusive right of fishery
in the river immediately before his land to the middle of the
river, and may prevent all others from participating in it, and
will have a right of action against any who shall usurp the
exercise of it without his consent, but the Provincial Statute of 8
Anne, ch. 3 (A.D. 1709), [
Footnote 11] prohibited all persons, "without approbation
or allowance," from placing in or across rivers or streams any
weir, hedge, or other encumbrance to obstruct the free passage of
fish in the proper seasons of the year. Persons who erect or build
a dam across any river or stream where the salmon, shad, alewives,
or other fish usually pass up into the natural ponds to cast their
spawn were required by the Provincial Statute of 15 George II, ch.
6 (A.D. 1741) to make a sufficient passageway for the fish to pass
up such river or stream, and the owners of dams so constructed that
such fish could not conveniently pass up the river or stream were
required to make such a passageway and keep it open for a certain
period in each year, as therein prescribed. [
Footnote 12] Laws of the kind, requiring the
owners of dams across the rivers and streams of the state, to build
fishways and keep them in repair, have been passed, in numerous
instances, since the state constitution was adopted, many of which
are still in full force. Such laws usually require the owners of
the dam to build the fishway at their own expense, and subject
their doings in that behalf to the approval of some supervisory
board or committee. [
Footnote
13] Reference was made at the argument to some thirty-five or
forty statutes of the kind, passed at different periods, commencing
the year the Constitution of the
Page 82 U. S. 514
state was adopted (1780) and coming down to the present time,
covering a period of more than ninety years. [
Footnote 14]
Statutes also encouraging mills by authorizing their owners or
occupants to overflow the lands of other persons, by paying such
damages as may be assessed in the mode prescribed, are also of very
ancient origin, and have received the sanction of the courts of the
state throughout the whole period of her history. [
Footnote 15]
Public rights in all jurisdictions are subject to legislative
control, and it is settled law in Massachusetts, and has been for a
century and a half, including her colonial history, that the right
of fishery in such rivers as the Connecticut and Merrimac, even
above the point where they are navigable for boats or rafts, and
the right to erect and maintain dams to create water power for mill
purposes, are public rights, and that the owners of such rights are
bound by such reasonable regulations as the state may make and
ordain for their protection and enjoyment.
All persons, said the supreme court of that state in the case of
Stoughton v. Baker, [
Footnote 16] who may build a dam for mill purposes on a
stream annually frequented by fish do it under an implied
obligation to keep open sufficient sluices and fishways for the
passage of fish at the proper seasons, and that the grant of the
right to erect a dam, if made by the legislature, is to be
construed to be under the same implied condition to keep open the
fishways unless such implication is excluded by an express
provision exempting the grantees from such an obligation. By the
statement of facts in that case it appears that the defendants' dam
was an ancient dam; that they deraigned their title from the
original
Page 82 U. S. 515
proprietor, who acquired his right thereto in 1633 by a grant
from the town within whose limits the mill site was then situated;
that the grant included the mill privilege and a weir adjoining the
mill, and the exclusive right of fishery; that the grant was
subsequently confirmed by the legislature, and that no fishway was
ever made through the dam until the year 1789, when one was
constructed at the expense of third parties pursuant to a
resolution passed by the legislature of the state; that on the
fifteenth of March, 1805, the legislature appointed a committee to
examine the dams on that river and to order such alterations to be
made in the fishways as in their opinion would be sufficient for
the convenient passage of the fish at said dam. Three-fourths of
the expenses were to be borne by the owners of the dams and
one-fourth by the towns interested in the fisheries. Suitable
fishways were accordingly constructed, and the towns, having paid
the whole expense, instituted a suit to recover one-fourth of the
expense of the owners of the dam. Able counsel appeared on both
sides, and the opinion of the court was delivered by Chief Justice
Parsons, all of the other justices concurring. Based on these
facts, it was contended for the defendants that the original grant
was a bar to the claim, but the court, conceding that the grant as
confirmed amounted to a franchise of a several fishery,
nevertheless held that the franchise could not be construed to
include the right of excluding all fish from passing above the
weir, the court giving as a reason for the conclusion that the
value of a fishery in such a stream depends upon the shoals of fish
that enter the river and pass to the ponds above to cast their
spawn, adding that if none was allowed to pass, the public would
lose their supply, and that the fishery would become of little or
no value. Evidence was introduced tending to show that the
franchise of the exclusive fishery was lost by nonuser, but the
court held that the said franchise, if it was not lost, would be no
objection to the right of the public to have a convenient
passageway for the fish to ascend the river to the ponds. They also
held that the original proprietor took a fee in the mill privilege,
and that he
Page 82 U. S. 516
had the right to erect the dam to raise water sufficient to
operate his mill, but that the right to build a dam for the use of
a mill was subject to the following limitations:
(1) That the proprietor must make compensation to the owners of
the lands above the dam for damages occasioned by overflowing their
lands.
(2) That he must so construct the dam that the fish will not be
interrupted in their passage up the river to cast their spawn,
adding that every owner of a water mill or dam holds it on the
condition that a sufficient and reasonable passageway shall be
allowed for the fish. [
Footnote
17]
Substantially the same questions were presented to the supreme
court of the state in the case of
Vinton v. Welsh,
[
Footnote 18] in which the
opinion of the court was delivered by Chief Justice Parker, and the
decision was in the same way and to the same effect. He decided
that the owners of dams across such rivers, as well as the owners
of such fisheries, hold their property subject to such regulations
as the legislature from time to time shall prescribe for the
preservation of the fish, basing his conclusion chiefly upon the
fact that the colonial and provincial governments, as well as the
government of the state under the state constitution, had exercised
the right of prescribing such regulations from the first settlement
of the country to the date of the decision in that case. [
Footnote 19]
Litigations upon the subject ceased for a time, but the same
questions thirty years later were again presented to the supreme
court of the state in the case of
Commonwealth v. Essex
Company, [
Footnote 20]
in which the opinion of the court was delivered by Chief Justice
Shaw as the organ of the whole court. Special reference is made in
that opinion to the prior decisions of the court upon that subject,
and all the leading cases here referred to are approved and the
propositions decided are reaffirmed, the court announcing the
following
Page 82 U. S. 517
conclusions: that from the earliest times the right of the
public to the passage of fish in rivers and the private rights of
riparian proprietors, incident to and dependent on the public
right, have been subject to the regulation of the legislature; that
the mode adopted by the legislature, whether by public or private
acts, to secure and preserve such rights has been by requiring in
the erection of dams such sluices and fishways as would enable
these migratory fish, according to their known habits and
instincts, to pass from the lower to the higher level of the water
occasioned by such dam, so that, although their passage might be
somewhat impeded, it would not be thereby essentially obstructed.
It appears in that case that the company was duly incorporated with
power to construct a dam across the Merrimac River at Lawrence,
subject to the condition, among other things, that they should
construct suitable fishways in their dam for the passage of
migratory fish; that they applied to the county commissioners,
requesting them, after due notice, to prescribe the mode in which
they should construct such fishways in their dam; that such notice
was given and a hearing had, and that the commissioners did
prescribe the mode in which the company should comply with that
requirement, and that the company did construct such fishways in
their said dam according to the mode and plan so prescribed; that
the fishways, however, as constructed, proved to be unsuitable and
insufficient to provide as convenient passageway for the fish.
[
Footnote 21] Circumstances
occurring subsequently made it necessary for the company to ask for
leave to increase their capital stock, and the legislature, in
granting their application, also provided that the company should
be liable for all damages occasioned to the owners of fish rights
above the dam by the stopping or impeding the passage of the fish
up and down the river by the said dam, and that such damages should
be assessed by the county commissioners of the county in which such
fish rights existed, saving to the respective parties the right to
apply
Page 82 U. S. 518
for a jury to make such assessment in the manner provided for
the recovery of damages from laying out highways. [
Footnote 22] Having accepted the amendatory
act, the company availed themselves of that provision and caused
the damages to the fish rights existing above the dam to be
assessed, and they paid the several assessments to the owners of
the same, amounting to the sum of twenty-six thousand dollars, "as
damages for hindering or impeding the passage of fish by their said
dam, with the aforesaid fishways therein, as previously
constructed." Such fishways did not admit of the usual and
unobstructed passage of the fish, as required by the law of the
state and the seventh section of their act of incorporation.
Complaints subsequently arose and the company was indicted for such
neglect and the case came to trial, and the jury, under the rulings
and instructions of the court, found the defendants guilty, and
they excepted to the rulings and instructions of the court, and the
case was heard before the full court. Unquestionably the case was
fully considered, and the court in the first place reaffirmed all
of their previous decisions upon the subject, which hold that
persons who build a dam for mill purposes on a stream frequented by
migratory fish do it under an implied obligation to keep open
sufficient sluices and fishways for the passage of the fish in
their accustomed seasons, and that every grant to erect such a dam
is to be construed as under the same implied condition unless such
implication is excluded by an express provision to that effect.
Still the court held that the legislature had the power to regulate
the public right, and in view of the fact that the amended charter
substituted a new proceeding for the recovery of damages by the
owners of the fish rights, and that the same, as assumed by the
court, had been executed, the court also held that the amended
charter had in it all the elements of a contract executed by one
party and binding on the other, and that it was not competent for
the legislature, even under the power reserved in a prior general
law, to amend, alter, or repeal
Page 82 U. S. 519
any such charter to require the proprietors of the dam, without
any change of circumstances, to construct the fishways, which by
the terms of the amended charter they had been exempted from any
obligation to construct, basing their opinion upon the ground that
the right acquired under that provision had become vested by a
legitimate exercise of the power granted. [
Footnote 23]
Vested rights, it is conceded, cannot be destroyed or impaired
under such a reserved power, but it is clear that the power may be
exercised, and to almost any extent, to carry into effect the
original purposes of the grant and to protect the rights of the
public and of the corporators, or to promote the due administration
of the affairs of the corporation. [
Footnote 24]
Had it appeared in that case that the amended charter
contemplated the assessment of damages for fish rights owned below
the dam as well as those owned above the dam, the opinion would
certainly be more satisfactory, as in that event the theory assumed
by the court that all the parties damaged in their fisheries had
been indemnified by the owners of the structure would be correct.
[
Footnote 25] Fish rights
below a dam, constructed without passageways for the fish, are
liable to be injured by such a structure as well as those owned
above the dam, as the migratory fish, if they cannot ascend to the
head waters of the stream at their accustomed seasons will soon
cease to frequent the stream at all, or in greatly diminished
numbers.
Suppose the rule, however, to be correct, still it is quite
clear that it does not control the case before the court for the
reasons given by the same court in rendering the decree brought
here for reexamination by the present writ of error. Passageways
for the fish had been constructed in that case under the act passed
incorporating the company, but they proved to be unsuitable and
insufficient, and the court, in sustaining the views of the
defendants, rested its decision upon the ground that the amended
charter discharged them
Page 82 U. S. 520
from the obligation to reconstruct such fishways, as the amended
charter required them to make compensation for the injuries to the
fish rights in the place of the prior obligation arising from the
rules of the common law of the state and the terms of their
original charter, the court holding that the government could not,
without any change of circumstances, require the
defendants to do the very acts which, by the terms of the amended
charter, they had been exempted from doing, but the court declined
to decide whether, if the fishways provided should prove to be
wholly unfit and inadequate to their purpose, the legislature could
not by further legislation require the company to fulfill the
original obligation. Sufficient appears to warrant the conclusion
that no evidence was introduced in that case to show that the fish
rights below the dam suffered any injury whatever, nor does it
appear that the attention of the court was drawn to the fact that
the river across which the dam was built runs through more than one
state. [
Footnote 26]
Different rules perhaps may be applied in ascertaining the power of
a state legislature to authorize permanent obstructions to the free
passage of fish in a river flowing through two or more states, like
the Connecticut or Merrimac, from the rules which should be applied
in a case where the river across which the dam is constructed is
wholly within the state which authorizes the structure, but it is
not necessary to consider that question in this case, as it was not
raised in the state court nor was it presented here by either
party.
Fishways have never been constructed by the respondents in their
dam, and they contend that they are not obliged to make any such
provision for the passage of the fish, as their charter does not
create any such obligation; but the answer which the complainants
make to that suggestion is decisive, that the charter does not
contain any provision exempting them from that implied obligation,
which arises in every such case by the common law of that state,
unless the charter contains some provision which expressly
negatives that
Page 82 U. S. 521
implication. Even suppose that is so, still they contend that
the fourth section of the charter of their grantors should be
construed as negativing any such implied condition, but the Court
is entirely of a different opinion, as that section makes no
provision for any compensation to the owners of the fish rights
below the dam, and the record shows that such fish rights, as well
as those above the dam, are injured by the obstruction to the free
passage of the fish in their accustomed seasons to the headwaters
of the river. Authority to construct and maintain a dam without a
fishway, it is conceded, is not granted in terms in the charter,
and it may be added that the charter does not contain any words to
warrant any such implication. On the contrary, the terms and
provisions of the charter are consistent with the theory that the
legislature contemplated the construction of a dam with a
convenient passageway for fish, so as not to impair unnecessarily
the rights of the riparian owners either above or below the dam,
and that the legislature, if the company failed to fulfill that
obligation, may "compel them to do so by more specific
legislation." Damages, it is true, were to be paid to "the owners
of present fish rights existing above the dam," but the Court here,
in respect to that matter, concurs with the state court that the
meaning of the sentence is satisfied by regarding it as providing
for a partial interruption and injury of those rights and not as
contemplating their utter destruction; that the legislature which
granted the charter may well have supposed that a dam across the
river at that place, with the best fishway that could be
constructed, would, to some extent, obstruct the free passage of
the fish, and may have intended by that provision to require the
owners of the dam to make compensation for such injuries.
Viewed in any reasonable light, it is quite clear that the
charters of the respondents do not contain any stipulation or
contract exempting them from the implied condition annexed to such
a grant, not qualified by such a contract, that the corporation in
erecting such a dam shall construct suitable and convenient
fishways for the free passage of the fish
Page 82 U. S. 522
to the headwaters of the river in their accustomed seasons, and
that the charter, in view of the fact that it contains no such
exemption, is subject to the power reserved to the legislature by
the general law, in operation when the charters were granted, that
all acts of incorporation shall at all times hereafter be liable to
be amended, altered, or repealed at the pleasure of the
legislature. Such charters being subject to the implied condition
to construct suitable fishways for the free passage of the fish, it
follows that the corporations are not exempt from that burden, and
that the legislature under the reserved power to amend, alter, or
repeal the charter, may pass laws to enforce that duty, as such a
law does not impair any contract created by the charter or infringe
any right vested in the corporation. [
Footnote 27] Charters subsequently granted must be
understood as standing just as they would if that reservation of
the power to amend, alter, or repeal the same had been incorporated
into each charter. [
Footnote
28] Power to legislate, founded upon such a reservation, is
certainly not without limit, but it may safely be affirmed that it
reserves to the legislature the authority to make any alteration or
amendment in a charter granted, subject to it, that will not defeat
or substantially impair the object of the grant, or any rights
which have vested under it, which the legislature may deem
necessary to secure either the object of the grant or any other
public right not expressly granted away by the charter. [
Footnote 29]
Such a charter may doubtless be granted to build a dam across a
river whose whole course is within the state granting the
franchise, with a provision exempting the corporation from all
obligation to construct such fishway for the free passage of the
fish, as the enterprise of erecting a dam to create power to
operate mills is so far public in its nature that it is competent
for the legislature to exercise the power of eminent domain to
accomplish the purpose, if suitable
Page 82 U. S. 523
provision is made to compensate the owners of the property or
rights condemned under that power, but it may be more doubtful
whether the legislature of a state can make a contract with such a
corporation authorizing them to construct a dam across a river
flowing through two or more states, which shall permanently exempt
the grantees from all such obligation and destroy forever the
rights of fishery in the river throughout its whole course from its
source to its confluence with tidewaters.
Concede, however, that the power to make such a contract exists
and that it is as boundless as the theory of the respondents
assumes it to be, still the Court here is of the opinion that the
decree of the state court is correct, and that it should be
affirmed, as the charters under which the dam in this case was
erected and is maintained do not contain any such exemption from
the implied obligation to construct fishways for the free passage
of the fish, nor any provision which prohibits the legislature from
imposing that obligation under the power reserved to amend, alter,
or repeal the charter.
Properly construed, neither of the charters affords any support
whatever to the theory of the respondents, as they do not contain
any semblance of a grant to take and subvert the fish rights below
the dam, nor is there anything in the provision requiring
compensation to be made to the owners of the fish rights above the
dam, which is not perfectly consistent with the theory that it was
incorporated into the charter merely to compensate the owners of
such fish rights for injuries which they would suffer from the
obstruction, even if the customary fishways were constructed as
required by immemorial usage and the express enactment of the
legislature.
Decree affirmed.
[
Footnote 1]
Chapter 68, § 41; Revised Statutes, chapter 44, § 23.
[
Footnote 2]
Special Laws 949; Revised Statutes 328-366.
[
Footnote 3]
Private Acts 1859, 225.
[
Footnote 4]
Sessions Acts 1866, 231;
id. 1867, 741;
id.
1869, 677-741.
[
Footnote 5]
Commissioners on Inland Fisheries v. Holyoke Water Power
Co., 104 Mass. 451;
Weston v. Sampson, 8 Cushing
347.
[
Footnote 6]
Dartmouth College v.
Woodward, 4 Wheat. 709-712;
Wales v.
Stetson, 2 Mass. 146.
[
Footnote 7]
Pennsylvania College
Cases, 13 Wall. 213.
[
Footnote 8]
Rice v. Railroad
Co., 1 Black 380;
Charles River Bridge v.
Warren Bridge, 11 Pet. 544.
[
Footnote 9]
Sedgwick on Statutes and Constitutional Law 339;
Lees v.
Canal Company, 11 East 652.
[
Footnote 10]
Commonwealth v. Chapin, 5 Pickering 204.
[
Footnote 11]
1 Provincial Laws 162.
[
Footnote 12]
Ib., 297; Ib. 17 Geo. II (A.D. 1743) 313;
ib.,
19 Geo. II (A.D. 1745) 321.
[
Footnote 13]
2 Laws of Massachusetts, Appendix, 1020-1026.
[
Footnote 14]
Vinton v. Welsh, 9 Pickering 90; Angell on Waters (6th
ed.) 72; Washburn on Easements (2d ed.) 501;
Peables v.
Hannaford, 18 Me. 106;
Parker v. Mill Dam Co., 20
id. 353.
[
Footnote 15]
1 Provincial Statutes, 12 Anne, ch. 1 (A.D. 1709) 160;
ib., 12 Anne, ch. 8 (A.D. 1714) 181; Ancient Charter
388-404; 2 Laws of Massachusetts 729; Revised Statutes (1836), 676;
Angell on Waters (6th ed.) 664; Washburn on Easements 332;
Murdock v. Stickney, 8 Cushing 119.
[
Footnote 16]
4 Mass. 528.
[
Footnote 17]
Burnham v. Webster, 5 Mass. 266;
Nickerson v.
Brackett, 10
id. 212;
Commonwealth v.
McCurdy, 5
id. 324;
Cottrill v. Myrick, 12
Me. 229.
[
Footnote 18]
9 Pickering 92.
[
Footnote 19]
Commonwealth v. Chapin, 5 Pickering 204.
[
Footnote 20]
13 Gray 248.
[
Footnote 21]
8 Special Laws 470.
[
Footnote 22]
8 Special Laws 990.
[
Footnote 23]
Sessions Acts 1831, 613.
[
Footnote 24]
Miller v. State, supra, p.
82 U. S. 478.
[
Footnote 25]
Moulton v. Libbey, 37 Me. 484.
[
Footnote 26]
Moor v. Veazie, 32 Me. 353;
Veazie v. Moor, 14
How. 571.
[
Footnote 27]
Revised Statutes 366;
Pennsylvania College
Cases, 13 Wall. 213.
[
Footnote 28]
Miller v. State, supra, p.
82 U. S. 478.
[
Footnote 29]
Commissioners on Inland Fisheries v. Holyoke Water Power
Co., 104 Mass. 451.