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Page:Harvard Law Review Volume 2.djvu/226

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208 ^^^ VABD LA W RE VIE W.

right to take it without compensation as against riparian propri* etors upon a stream below. For not only is the necessity to make compensation for property so taken recognized in a former part of this opinion, but the statute under which the suit was brought provided for it, and the court expressly held, in an opinion by Chief Justice Bigelow in a former suit between the same parties, that the taking of this very water was an exercise of the right of eminent domain. Statute 1850, chapter 273. Fay v, Salem and Danvers Aqueduct, 9 Allen, 577."

That the real ground upon which the decision in Fay v, Salem and Danvers Aqueduct Co., 1 1 1 Mass. 27, rests, was the remoteness or the peculiar nature of the damage suffered by the petitioner, and not the right of the Commonwealth to drain the pond at its pleasure without making compensation, appears from Bailey v. Inhabitants of Woburn, 126 Mass. 416 (1879), and Watuppa Reservoir Co. v. Fall River, 134 Mass. 267 (1883). Both were petitions by ripa- rian owners on the outlet stream of " great ponds " for damages to their water rights, by the taking of the water from the ponds for supplying the town of Woburn and the city of Fall River respec- tively. In the former case the statute provided that the " town of Woburn shall be liable to pay all damages that shall be sustained by any persons in their property by the taking of any land, water or water rights." In the latter case the act provided that " the city of Fall River shall be liable to pay all damages that shall be sustained by any person or persons in their property by the taking " of water from the pond. In both cases it was held that the petitioner was entitled to recover. The cases of Cowdrey v, Woburn, 136 Mass. 409 (1884), and Brickett v, Haverhill Aqueduct Co., 142 Mass. 394 (1885), are to the same efifect. The water sub- tracted from the ponds in these four cases belonged to the State in the same sense as the water subtracted in the case of Fay v, Salem and Danvers Aqueduct Co., 1 1 1 Mass. 27. The public purpose for which the State authorized its taking was precisely the same in each of the five casesĀ ; yet the four later decisions show that while there may be no right of the riparian owners on a great pond to recover for an injury to their houses resulting from drawing down the pond, there is a right in the riparian owners on a stream fed by a great pond to the maintenance of its ordinary flow, the question in each case arising as against the public. These cases establish, therefore, that it was the nature of the damage to the