Page:Harvard Law Review Volume 8.djvu/170

154 HARVARD LAIV REVIEW. Court jurisdiction of the question of interstate boundary, and no jurisdiction of the question whether the territory within the boun- dary shall, by the act of a neighboring State, be deprived of all which makes that territory valuable ? Has New Hampshire no interest in the proposed change of one of her leading topographical features ? Would Massachusetts, as a State, have no remedy in case New Hampshire should attempt to authorize the diversion of the Connecticut or the Merrimack ? We have not been fortunate enough to find much authority bearing directly on this case. The weight of judicial opinion, as thus far expressed, seems decidely m favor of the foregoing views. Indeed, it can hardly be said that there has been any considered opinion to the contrary. We will, however, comment upon two cases ^ which may possibly be claimed as tending in the other direction. We have assumed that Brickett v. Haverhill Aqueduct Co.^ will be cited as an authority directly in points against our views. But a careful examination of that case shows that the great point here in question was not raised by the plaintiff in that case ; and that the case, if unfavorable to our view, is so rather from the inference to be drawn from the omission of counsel to raise the point, or of the court to allude to it, than from any authoritative decision or thor- ough investigation as to this subject. A Massachusetts statute authorized the aqueduct company to take water, to a certain extent, from two ponds and a lake in Massachusetts, with a provision for the payment of damages. The company at times took more water than the statute allowed, drawing down the pond below low-water mark, in violation of the express prohibition of the statute. The outlet of the lake was a small natural stream. The plaintiff owned land, situated partly in Massachusetts and partly in New Hampshire, through which this stream flowed. The plaintiff, whose citizenship is not directly stated, contended that the taking of water by the aqueduct com- pany had diminished the flow of water through his land, and brought, in the Superior Court of Massachusetts, a common-law action of tort for this diversion of the water of the stream. The plaintiff did not raise the question whether the Massachusetts statute could have a valid extra-territorial operation. His only objection to the validity of the statute was, that it did not con- 1 142 Mass. 394, and 30 Fed. Rep. 392. * 142 Mass. 394.