Page:Harvard Law Review Volume 8.djvu/154

138 13* HARVARD LAW REVIEW. POWER OF A STATE TO DIVERT AN INTERSTATE RIVER.i TT is believed that the city authorities of Boston are considering -■- the possibility of taking water from the Nashua River to sup- ply the inhabitants of the city. The Nashua River rises in Massa- chusetts, and flows thence into New Hampshire, where it empties into the Merrimack. At Nashua, N. H., the Nashua and Jacksor. Manufacturing Companies have large mills, the power for which i'i furnished by the Nashua River ; and this water-power would, it is apprehended, be seriously impaired by the proposed diversion of the river to supply Boston. It is supposed that Boston may purchase a strip of land on the banks of the Nashua River, at some point in Massachusetts, distant about thirty miles from Boston, and may then apply to the legislature of Massachusetts for an act authoriz- ing the diversion of the river, with a provision for ascertaining and paying the damages to lower riparian proprietors in Massachusetts, and possibly with a like provision in reference to the riparian pro- prietors in New Hampshire. The Nashua and Jackson Manufacturing Companies desire an opinion as to the power of the Massachusetts legislature to author- ize such diversion of the river, either with or without a provision for compensation to the New Hampshire riparian proprietors. We cannot bring ourselves to believe that such an act, in either form, will be passed by the Massachusetts legislature. But, for the purposes of this discussion we will assume that the act has been passed in Massachusetts without any concurrent legislation in New Hampshire, that the city authorities are attempting to carry it out, and that the Nashua Manufacturing Company has brought a bill in equity in the United States Circuit Court for the District of Massa- chusetts against the city of Boston and its agents, praying that they may be enjoined from diverting the water. What decision would be given ? ' This article, in substance, consists of an opinion given by the writers, in January, 1894, as counsel consulted in behalf of the Nashua and Jackson Manufacturing Com- panies. No legislat on, such as is herein discussed, has yet taken place; and con- quently there is no litigation pending on this subject.