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by this bill. Indeed, a more apt illustration of the proper application of the rule could hardly be found. From the vast number of cases to which this rule has been applied by the courts of this country, the following are selected by way of example: In Murray v. Hay, 1 Barb. Ch. 59, 43 Am. Dec. 773, it was held that two persons owning separate tenements, which are injured or rendered unhabitable by a common nuisance, or which are rendered less valuable by a private nuisance which is a common injury to the tenements of both, may join in a suit to restrain such nuisance. To the same effect are Madison v. D. S. C. & I. Co., 83 S. W. 658, 113 Tenn. 331, and Grant v. Schmidt, 22 Minn. 1. In Cad. igan v. Brown, 120 Mass, 493, it was held that several persons owning distinct properties to which there was a common right of way could join in a suit to prevent the obstruction of such right of way. In Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632, it was held that the several owners of lots on Hayward Place, holding under titles which provided that no buildings except dwellings should be erected thereon, could join to prevent the defendant from violating the restriction. In Rafferty v. Traction Co., 147 Pa, 579, 23 Atl. 884, 30 Am. St. Rep. 763, the separate owners of property fronting on High street in the city of Pittsburg were allowed to join in a bill to restrain the de fendant from operating a cable railway on that street. In Lonsdale v. City of Woonsocket, 44 Atl. 929, 21 R. I. 498, it was held that, where several persons have a common interest in the prevention of the diversion of the waters of a stream from their respective mill privileges, they may oin in a bill to enjoin it, though they hold under distinct titles and claim independent interests. In Reid v. Gifford, Hopk. Ch. (N. Y.) 416, the separate riparian and mill owners were allowed to join in a bill to prevent the diversion of the waters of the stream. In Strobel v. Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643, it was held that riparian proprietors, each owning distinct parcels of land on a natural water course, have a common grievance which entitles them to join in a suit to prevent the pollution of the stream. In Gillespie v. Forrest, 18 Hun (N. Y.) 110, it was held that all whose lands were overflowed and injured by the erection of piers in a stream could join a bill against the party erecting them. In Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am, St. Rep. 243, it was held that separate riparian owners could join in a bill to restrain the maintenance of a dam causing their several lands to be overflowed and practically destroyed.
It is true that, of these cases, Murray v. Hay, Grant v. Schmidt, and Turner v. Hart show that an accounting could not be had in such cases in the jurisdiction where those cases arose. But under our practice in eq. uity such accounting can be had as an in
cident of the general relief granted. The "community of interest” between the complainants in the foregoing cases is much like that between the plaintiffs in Coryton v. Lithebye, 2 Saund. 115, and the Tunbridge Wells Case, 2 Wils. 423, in which cases, even in actions at law-where all agree the rule is less liberal—the plaintiffs were held properly joined. In the former, the plaintiffs owned separate mills, and had acquired by custom the right to have ground at the one mill or the other all the grain of the tenants of the manor of Calliland. The defendant, one of the tenants, withheld his grain from these mills, and procured it to be ground elsewhere. Whereupon the plaintiffs brought an action for damages. In the latter, the plaintiffs, 12 in number, were dippers at the Tunbridge wells, chosen by the freeholders of the manor and approved by the lord of the manor. Their business was to attend the wells and deliver the water to those who resorted there. Their profits arose solely from the voluntary contributions of the visitors. When the defendant, not being properly appointed a dipper, dipped of the waters, the other joined in an action for damages. The same rule applies to the joinder of defend. ants, where several riparian owners, acting independently, discharge mill refuse into a stream to the injury of a lower proprietor. Lockwood Co. v. Lawrence, 77 Me. 297, 52 Am. St. Rep. 763. Such a case was Waterman v. Buck, supra. And, conversely, it is held that, when several plaintiffs have separately sued the same defendant in actions at law for a continuing trespass, and his liability in each action depends upon the same facts, equity has jurisdiction to enjoin the multiplicity of actions and have them consolidated in the same suit. Railroad Co. V. Garrison, 81 Miss. 257, 32 South, 996, 95 Am. St. Rep. 469.
3. The removal of the obstructions to the flow of the stream pursuant to the contract hereinbefore set forth created an artificial condition in the channel, and the rights and liabilities of riparian owners in respect of artificial water courses are not necessarily the same as in the case of natural streams, though they may be. This depends upon the circumstances under which the artificial condition was created or continued. If an artificial channel is substituted for a natural one, or if it is created under such circumstances as indicate that it is to be permanent, riparian rights may attach to it. Pollock, C. B., in Wood v. Waud, 3 Ex. 779; Railway Co. v. Keys, 55 Kan, 205, 40 Pac. 275, 49 Am. St. Rep. 249. If such change is made by joint or mutual action of riparian proprietors, the rights and duties with respect to the artificial channel will be the same as though it was the natural one. 3 Farnh. Wat. $ 827a, This principle might suffice for the disposition of this question, but we are not content to place it there. This change was made by the concurrent action of the parties under a
contract mutually agreed to and executed on channel, or, as in the case of Woodbury v. both sides, at least so far as it related to the Short may be supposed to have done so, that changes in the stream; but it was all on the the stream should not then be allowed to be lands of the defendants' grantors, and the restored to its former channel to the detricontract, as such, was not binding on these ment of other riparian proprietors. defendants. Some of the cases hold that, But the law as to running streams is also after the artificial channel has been main analagous to public rights like highways and tained for the statutory period, reciprocal commons, inasmuch as a large number of prescriptive rights to have it continued arise. persons have an interest in fresh water Mattheweson v. Hoffman, 77 Mich. 420, 43 N. streams, and they are therefore quasi of W. 879, 6 L, R. A. 319; Smith v. Youmans, public concern, and the rules of public dedi70 N. W. 1115, 96 Wis. 103, 37 L. R. A. 285, cations have been applied to an acquiescence 65 Am. St. Rep. 30; Kray v. Muggli, 86 N. iu a new bed for such stream; and one who W. 882, 84 Minn. 90, 54 L. R. A. 473. But cuts such bed on his own land, and thereby the agreement here negatives the adverse renders the use of the stream beneficial to character of the right enjoyed by the orators other proprietors, in a different mode, is and their grantors, and the technical doc bound to the same extent, and in as short a trine of prescription is inapplicable. It is period, as if he alters the fence on a highsaid that there is a much more impregnable way or common, and thereby gives priri. ground on which to put such decisions, and leges to the public. He cannot often recall that is the ground of estoppel. And if a them after the shortest term. Any term is landowner makes a change in the course of sufficient which satisfies the jury that the a stream wbich to all appearances is per public were justified in treating it as a dedi. manent, and holds out to the world the rep cation." resentation that such condition is perma This is the doctrine of Delaney v. Boston, nent, he will be bound by his acts; and, after 2 Har. (Del.) 439, wherein it was held that other persons have acquired rights by chang riparian proprietors had a right, by dedicaing their positions upon the faith of such tion and substitution, to have the waters of representation, he will be estopped from de a stream flow through an artificial channel nying that it was true, or claiming that the which had been cut by a lower owner 50 stream is not flowing in its true channel. 3 years before, It makes no difference that the Farnh. Wat. $ 827c. This reasoning is changes here were made within the channel in entire harmony with our decisions in of the stream, instead of by making a new cases of like character. In Woodbury V. channel. The rule is precisely the same. 3 Short, 17 Vt. 387, 44 Am. Dec. 344, it was Farnh. Wat. $ 827c. The riparian owners held that, when the course of a stream, run are entitled to the benefit of any such change ning through the land of the defendant to which may have been made, if they were apthat of the plaintiff, was changed by a sudden parently intended to be permanent, and such flood, so as to run upon the defendant's land owners have acted upon the faith of the conwithout passing over that of the plaintiff, ditions so remaining. In Paige v. Canal & and the defendant permitted it to flow in the Irrig. Co., 83 Cal. 84, 21 Pac. 1102, 23 Pac. new channel for a period of 10 years, he 875, it was held, upon the authority of Woodcould not turn it back into the old channel. bury v. Short and Ford v. Whitlock, that a This decision was put upon the ground of riparian owner is entitled to the benefit of acquiescence, and the court said that, if the the removal of obstructions from the head defendant would restore the stream to its of the stream which had prevented the water original channel, he must act within a rea from flowing down to his land. Chapman y. sonable time and before new interests would Mfg. Co., 13 Conn. 269, 33 Am. Dec. 401. It naturally be acquired in the new course in matters very little whether we call it a dediwhich he had permitted it to run. In Ford cation or an estoppel, for the underlying v. Whitlock, 27 Vt. 265, the same question, principle of each is the same-the injustice except that the change in the stream was of allowing one to deny the existence of conmade by the owner of the land-a stronger ditions, which by his conduct he has induced case against its restoration-again came be another to believe exist, in reliance upon fore the courts, and the right to restore the which that other has changed his position. stream to its natural channel to the injury The artificial conditions created in the of other riparian owners was denied. "It creek at Middlebury became the natural conseems to us,” says Judge Redfield in the
ditions, not prescriptively, nor by lapse of opinion, “analagous to the rules of law time, nor by grant contained in the contract, which have been applied to dedications to nor by force of the contract, as such, at all, public use of land or the use of land; and it but by force of the circumstances under seems to be highly equitable and just that, which they were created—by dedication and where one has by his own act, either original substitution. The contract (which gained ly changed the course of the stream, or suffered nothing by being recorded, since it was not it to remain in a channel cut by some sudden entitled to record) affords evidence of the inconvulsion, until others have expended mou tention to make the changes permanent-a ey in erections, as in the present case, in dedication for all time. The right of the faith of the stream running in the new then riparian owners to have the new condi.
tions continue attached at once upon the Page & Bartlett, for plaintiff. John L. completion of the work. It attached to all Mitchell, for defendant. the riparian lands, and became rooted in them, whether owned by those who were WALKER, J. "Towns may by vote exparties to the contract or not. It now be empt from taxation, for a term not exceeding longs to the orators by virtue of their own ten years, any manufacturing establishment ership of riparian lands, as an incident to proposed to be erected or put in operation such ownership, whether they derived their therein, and the capital to be used in operattitle from those who then owned the lands | ing the same, unless such establishment has or not. It came to them as the fertility of been previously exempted from taxation by the soil came to them, not because it was ex some town." Pub. St. c. 55, § 11. It is arpressly granted, but as a natural appurte gued that this statute authorized the city nant.
councils of Portsmouth to pass the vote of The pro forma decree overruling the de April 27, 1903, by which it attempted to exmurrer and adjudging the bill sufficient is empt the Gale Shoe Manufacturing Company affirmed, with costs to the orators. The de from taxation upon "the manufacturing escree for the orators according to the prayer tablishment, factory, and plant occupied by of the bill is reversed pro forma, and the it, with its property and assets, and the cause is remanded.
capital to be used in operating the same,” and that this vote covered the property in
question, which it subsequently leased of the (74 N. H. 222)
Portsmouth Company. One question presentPORTSMOUTH SHOE CO. v. CITY OF ed, therefore, upon the plaintiff's contention, PORTSMOUTH.
is whether the city councils could exempt (Supreme Court of New Hampshire. Rocking
the Portsmouth Company's property from ham. May 7, 1907.)
taxation under the vote exempting the Gale 1. TAXATION-EXEMPTIONS MANUFACTURING
establishment. Did the Legislature intend to CORPORATIONS.
confer authority upon towns to exempt propPub. St. c. 55, § 11, providing that towns erty owned by A., but leased to B., and used may, by vote, exempt from taxation, for a term not exceeding 10 years, any manufacturing es
by the latter in his exempted establishment? tablishment proposed to be erected therein and Until the property was turned over to the the capital to be used, does not confer authority lessee, it was taxable in Portsmouth. Its to exempt an owner of property who is not en owner held it subject to that burden. And titled to such exemption from taxation on the same because it is leased to another who is so
after the lease it remained taxable to the entitled.
owner, if it was taxable at all. It could 2. SAME.
not be taxed to the lessee without the latter's That the manufacturing company entitled consent. Pub. St. C. 56, § 14. In short, it reto the exemption agreed in the lease to pay the taxes does not affect the question of exemp
mained the property of the lessor, whose tion.
claim is, in effect, that it is not legally tax
able as the owner of it, because it is used Transferred from Superior Court, Rocking.
by the lessee whose property is exempt. But, ham County; Chamberlin, Judge.
unless a somewhat liberal construction of the Petition by the Portsmouth Shoe Company
statute is to be adopted, this conclusion canagainst the city of Portsmouth for an abate
not be sustained. “The language of the statment of taxes. Facts agreed, and case trans
ute strongly supports this conclusion, and so ferred from the superior court and heard on
does the uniform current of authority, that, plaintiff's motion for a rehearing. Case dis
taxation being the rule and exemption the cbarged.
exception, the exemption is to be strictly conEarly in 1903 the Gale Shoe Manufacturing strued, and will never be permitted to extend, Company, a Massachusetts corporatio desir either in scope or duration, yond what its ed to come to Portsmouth and there engage in terms clearly require." Boody v. Watson, 63 business. On April 27, 1903, the city councils N. H. 320. See, also, New London v. Acadvoted to exempt that corporation from taxa emy, 69 N. H. 445, 46 Atl. 743; Williams v. tion for 10 years upon “the manufacturing Park, 72 N. H. 305, 311, 56 Atl. 463, 64 L. establishment, factory, and plant occupied by R. A. 33. it, with its property and assets, and the It is certain that the language of the statcapital to be used in operating the same." ute does not clearly disclose an intention to The Gale Company then leased for the term allow the exemption of one man's property of five years the shoe factory and machinery from taxation because it is used by another, owned by the plaintiffs, and covenanted to under some contractual arrangement bepay all taxes assessed upon the leased prem tween them, in a business which enjoys an ises. In 1904 the assessors levied a tax upon exemption. If the mere use of the property, the leased property against the plaintiffs, without regard to its ownership, had been infor which they seek an abatement. They are tended to be the test to determine whether it entitled to such abatement if the property could be exempted under the statute, it would was legally exempted; otherwise, they are be natural to expect more explicit language not. If the exemption is not sustained, the to such a purpose. The "manufacturing estabcase is to be discharged.
lishment” referred to in the statute means,
or relates to, the property of the proprietors | by a dam in a stream for the operation of a of the industry, who receive the benefit con
gristmill, he was entitled to make such changes
as were necessary to change the mill into an exferred by the statute, and not the property
celsior factory, which would not prevent the of others having no interest in the prosecu letting down of the amount of water which it tion of the business. The city councils of had been previously determined represented the Portsmouth had no power to vote to exempt
capacity of the original reservoir.
3. APPEAL-FINDINGS-CONCLUSIVENESS. the property of the plaintiff upon the condi
A finding that a change in plaintiff's plant tion that it should lease it to another manu
prevented the letting down of an amount of facturing company. Though the vote did not water equal to the original capacity of the directly take that form, that is the practical
reservoir, in violation of a prior decree estabeffect of it, as claimed by the plaintiff. A
lishing water rights, was conclusive on plain
tiff. construction of the statute supporting such 4. JUDGMENT CONCLUSIVENESS PERSONS a transaction would be an encouragement, Not PARTIES. not of manufacturing industries, which is the Where the owner of a gristmill right was fundamental purpose of the statute (Opinion
not a party to proceedings in wbich an order
limiting another privilege to 38 cubic feet per of the Court, 58 N. H. 623), but of the busi second when the water did not run over the ness of leasing manufacturing property. Any wasteway of the dam, and it was thereafter debenefit derived by the lessee in such a case
termined that the gristmill was entitled to re
quire all the other mills to shut down when from the exemption would be indirect and
the water fell six inches below the top of the remote, depending not upon the statute, but wasteway, the millowner was not affected by an upon the leasing contract. As said by the order modifying the limitation on the 38 cubic court in County V. Bell, 43 Minn, 344, 345,
feet privilege. 45 N. W. 615, 616: “The lessors claiming the
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 30, Judgment, $81230-1233.) benefit of the exemption in this case are mere
5. SAME. private owners of the property, and the ex
Where, in proceedings to establish rights emption is not for the lessees, *
* and it
to the use of the waters of a reservoir formed can only be claimed arguendo to be for their by the damming of a stream, both parties erbenefit in an indirect and collateral way.”
cepted to the court's findings, orders, and de
crees, which exceptions were overruled, the deEvidently, under the usual rules for the con
crees thereby became judgments conclusively struction of tax-exempting statutes, the legis establishing the rights of the parties. lative purpose to relieve property from the 6. WATERS AND WATER COURSES—RIGITS IN tax burden cannot be found by indirection
WATER-ACTION—MODIFICATION OF ORDER. and surmise. The plaintiff's property was
Where, by a modified order, a sawmill draw
ing water from a reservoir formed by a dam in legally taxable. The fact that the Gale Shoe a stream was permitted to draw down the water Company agreed in the lease to pay the tax below the top of the wasteway, without limitaes does not affect the question of the statu
tion as to amount, while plaintiff's gate was
set so as to draw only 17 feet, to which he tory exemption. People v. Assessors, 32 Hun
was entitled when the water was at the top of (N. Y.) 457; Black v. Brooklyn, 51 Hun, 581, the wasteway, the order was erroneous as de 4 N. Y. Supp. 78; Humphries v. Little Sisters priving plaintiff of the water according to bis
right, when the water in the reservoir fell below of the Poor, 29 Ohio St. 201, 207; Travelers'
the top of the wasteway. Ins. Co. v. Kent, 151 Ind. 349, 50 N. E. 562,
7. APPEAL-AMENDMENT TO PLEADING-Dis51 N. E. 723; Douglas County Society v. Coun CRETION. ty, 104 Wis. 429, 80 N. W. 140; Laurent v. Whether, in a proceeding to determine waMuscatine, 59 Iowa, 404, 13 N. W. 409; Ar
ter rights, justice required that plaintiff should
be permitted to amend his petition so as to mand v. Dumas, 28 La, Ann. 403. This result
present for adjudication his right to use water makes it unnecessary to consider other ar previously appropriated for a gristmill for other guments in support of the legality of the tax. purposes, was a question of fact, the denial of
which presented no question of law for review Case discharged. All concurred.
by the Supreme Court.
Transferred from Superior Court, Carroll (74 N. H. 225)
County; Chamberlin, Judge.
Petition by Frank Hutchins against Oliver (Supreme Court of New Hampshire. Carroll. P. Berry and others, for interlocutory orders May 7, 1907.)
in certain controversies as to water rights 1. NEW TRIAL WATER RIGHTS CHANGED previously adjudicated in the cases of Horne CONDITIONS. Where the extent and capabilities of a
v. IIutchins, 71 N. H. 117, 51 Atl. 645; Horne reservoir formed by a dam in a stream had v. Hutchins, 72 N. H. 211, 55 Atl. 361; Berry previously been determined in proceedings to v. Hutchins, 73 N. H. 310, 603, 61 Atl. 550. adjust the water rights of riparian proprie 554. Case transferred from superior court. tors, error could not be predicated on the re
Discharged. fusal of the court to reopen the question and grant plaintiff a new trial on an application al See 63 Atl. 787; 65 Atl. 1117. leging that, with the gates and physical conditions as they existed at the time the rights
The plaintiff alleged that, not desiring to were determined, it was not now possible to
use the water of the reservoir below the draw the amount of water to which he was en four-foot point at this time, he proposes to titled from the reservoir,
change the physical condition of dam A. So 2. WATERS AND WATER COURSES-CHANGES OF
that no water can be drawn below the fourPLANT.
Where plaintiff was awarded the right to a foot point, and to substitute gates above the certain amount of water collected in a reservoir four-foot point for those heretofore in use, and
asked the court to fix and determine the size existing conditions as the limit of practicable of the proposed gates. Under this allegation use was approached would be competent; the plaintiff proposed to retry the question but, if the parties were engaged in a trial of of the capacity of the reservoir, claiming the fact as to the capacity of the reservoir that, with the gates and physical conditions right attached to the Pickering dam, the exas they were in 1854, it was not possible to clusion of evidence of measurements of the draw the amount of water now required to flow of the stream under a claimed reprobe drawn from the reservoir, namely, 130 duction of conditions existing prior to the cubic feet per second. Subject to excep Lake company improvements would not be tion, the court refused to retry the question error of law. Cook v. New Durham, 64 N. of the capacity of the reservoir, to revise the H. 419, 13 Atl. 650. The difficulty of ascerorder as to the draft of water, to hear evi- taining all the conditions which might have dence as to the physical condition at dam A then affected the flow of the stream, and of prior to the improvements made by lowering determining whether they had been corthe outlet of the reservoir, or to determine rectly reproduced, might be so great that the size of the gates; but ruled that the plain an attempted investigation of the collateral tiff might make such changes as he wish- | question would tend to confuse rather than ed which would not interfere with existing to elucidate the issue between the parties. orders as to the draft from the reservoir. Even, therefore, if the question as to the The court found that the experience under flow of the stream had been under investigathe existing order was not sufficient to de tion, the refusal of the court to fix and determine whether the amount required to be termine the size of gates such as existed in daily drawn was greater or less than the 1854 would not present anything for concapacity of the reservoir in the average year. sideration here; but, if the law were otherThe plaintiff also alleged that the existing wise, the extent and capability of the reserorders as to the use of water at dam C were voir having been already determined, error in conflict with the opinions of the Supreme of law cannot be predicated upon the reCourt, and that the third order, filed De fusal of the court, upon the facts stated, to cember 14, 1903, was not now in force as reopen the question and grant the plaintiff a matter of law. Subject to exception, the new trial, which it is found was the object court refused to make any change in those of the motion, and which must of necessity. orders. The plaintiff offered evidence that have been its purpose if any result was exhe now intends to remove the gristmill ma pected to follow the desired investigation. chinery, to put in machinery for the making Hutchinson v. Railway, 73 N. H. 271, 284, of excelsior, and to use all the water the 60 Atl. 1011; Ela v. Ela, 72 N. H. 216, 55 gristmill wheels can now use about 69 cubic Atl. 358. The plaintiff has the right, as feet per second-and asked leave to amend was ruled by the superior court, to make his petition by alleging his present intention any changes he desires which will not preto use the gristmill for other purposes. The vent the letting down of the amount of defendants were not prepared to try such water which it has been determined reprequestions of fact as might be necessary to sents the capacity of the original reservoir. determine the rights of the parties as to the While the latter finding stands, any change proposed use of the gristmill, and the court made by him which prevents the flowing of declined to order the defendants to a trial
that amount of water, it must be conclusive of these questions. The court refused to ly presumed, is the creation of a condition rule upon the right of the plaintiff to use different from what originally existed. As the gristmill power otherwise than for a to whether there should now be a further gristmill, and the plaintiff excepted.
trial and the reception of additional evidence, James A. Edgerly, Arthur L. Foote, Felker experimental or otherwise, the fact has been & Gunnison, and Charles B. Hibbard, for
found against the plaintiff. Such finding is plaintiff. Leslie P. Snow, Sewall W. Abbott, conclusive. and Oscar L. Young, for defendants.
The plaintiff excepted to the refusal of the
court to change the order made and now in PARSONS, C. J. Upon trial of the ques force for managing the water or wheels of tion of the extent of the defendants' reser the different mills. The only order to which voir right, that right has been found to be a objection has been made here is the third reasonable use of the reservoir until it is order, filed December 14, 1903. That order drawn down four feet below the top of the is objected to so far as it modifies the first dam, and such reasonable use has been found order, filed July 25, 1902, which limited the to consist in letting down not exceeding 130 Berry privilege to 38 cubic feet per second cubic feet per second for 10 hours each work. when the water did not run over the waste ing day until that point is reached. Horne way. The modification objected to provided v. Hutchins, 72 N. H. 211, 214, 215, 55 Atl. that the limitation of the Berry privilege 361; Berry v. Hutchins, 73 N. H. 310, 312, should not take effect until the water fell 18 61 Atl. 550; Hutchins v. Berry, 73 N. H. 611, inches below the top of the wasteway. In 613-616, 63 Atl. 787. Upon tbe trial of that the original brief, the plaintiff bases his obquestion of fact evidence as to the amount of jection to the modification upon the preferenwater that could be drawn under previously tial right of the gristmill. As the owner of