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Page:Harvard Law Review Volume 2.djvu/214

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acres. Through the Quequechan or Fall River, a stream o£ about two miles in length, these ponds empty into the tide water. In the last half-mile of its course the Quequechan has a fall of nearly one hundred and thirty feet, and is occupied by a succession of valuable mill privileges. The taking of the water of the ponds under the act of 1871 materially reduced the flow in the Que- quechan, and heavy damages were assessed in favor of the mill- owners. When, in 1886, the city of Fall River had occasion to ask the Legislature for leave to take an additional supply of water from the ponds, the idea was conceived of avoiding the payment of compensation for injury to these mill-owners. The proposed bill purported to relieve the city from " liability to pay any other damages than the State itself would be legally liable to pay," pro- vided that " parties holding in respect of said pond any privileges or grants heretofore made and liable to revocation or alteration by the State shall have no claim against said city in respect of water drawn under this grant," and annulled "any privileges heretofore enjoyed in respect of said pond," so far as inconsistent with the act. On the day before the close of the session, the bill, having passed both Houses, reached the Governor, who returned it to the Senate, where it originated, on the ground that it authorized the taking of private property without providing compensation. In the hurry of the last day of the session the bill was passed over the Governor's veto.^ The city of Fall River at once proceeded to take additional water from the Watuppa Ponds, without making compensation to the mill-owners on the Quequechan, and suits were brought by them and by the Watuppa Reservoir Company (a corporation organized for the purpose of controlling and regu- lating the water in the ponds and on the stream) to restrain the city of Fall River from taking water under the act.^

By a majority of four to three,* the Supreme Judicial Court of Massachusetts ordered that the bills be dismissed. All the judges apparently admitted that, according to the common law, the Legis- lature could not authorize the taking of the water of a pond with- out providing for compensation for damages done the riparian owners on the outlet stream by a diminution of its flow. But the

1 Mass. St. 1886, c. 353.

  • Wmtuppa Reservoir Co. v. City of Fall River; Troy Cotton and Woollen Manufactory

t^ City of Fall River. Supreme Judicial Court of Massachusetts, Oct 29, 1888.

• Morton, C. J., Devens^ Field, and Holmes, J J., against W. Allen, C, Allen, and Knowlton, JJ.