Page:Harvard Law Review Volume 8.djvu/155

139 POWER TO DIVERT AN INTERSTATE RIVER. 139 This question is considered, for the present, upon two assump- tions : I, that the proposed diversion would result in substantially impairing the water power at Nashua ; 2, that the Nashua River is not " navigable " in the legal sense of that term. The city of Boston, by becoming a riparian proprietor (by pur- chasing land on the banks of the Nashua River at a distance of thirty miles from the city), could not thereby acquire the right to take water from the river for the supply of the citizens, — could not acquire the right to take water from the river in sufficient quantities to supply the domestic wants of its inhabitants.^ The diversion of the water by the city, if done without legislative authority, would be a tort. The New Hampshire mill-owners could proceed against the city or its agents, either in a Court of Equity for prevention, or in a Court of Law for the recovery of damages. And they could maintain such proceedings in Massachusetts, oiVaQr in the State Court or in the United States Circuit Court for the District of Massachusetts.^ Such a taking could not be constitutionally authorized by the Massachusetts legislature, as against Massachusetts riparian own- ers, unless provision were made for compensation. It would be regarded as a taking of the property of the lower owners on the Massachusetts banks of the river.^ It is taking an easement in ' City of Emporia v. Soden, 25 Kansas, 588 ; s. c. t,j Am. Rep, 265 ; Stein v. Burden, 24 Alabama, 1 30, pp. 146-147 ; Lord z/. Meadville Water Co., 135 Penn.St. 122 ; s. c. 19 Atl. Rep. 1007 ; 2 Lewis Am. R. R. & Corp. Rep. 744; and see note page 746, Endi- COTT, J., in ^tna Mills v. Brookline, 127 Mass. 69, p. 72. Jr. 275 ; Grier, J., pp. 288-290 ; Rutzz/. St Louis, 7 Fed. Rep. 438 ; Manville Co. v. Worcester, 138 Mass. 89; 6 Criminal Law Magazine, 168-173. See also Burk v. Simonson, 104 Indiana, 173, p. 179. (The decision in Worster v. W. L. Co., 25 N. H. 525, is opposed to the great weight of authority. It is based on the erroneous suppo- sition that the so-called rule in Bulwer's Case has become obsolete ; whereas that rule prevails in most jurisdictions to-day.) ^ Lewis on Eminent Domain, ss. 61 and 62 ; 78 Maine, pp. 132 and 134. This doctrine was not questioned in the much-discussed case of Watuppa Reservoir Co. V. Fall River, 147 Mass. 548, commented upon in 2 Harv. Law Rev. 195, 316, and 3 Harv. Law Rev. i. The decision of the majority was based on the alleged absolu'e power of the State, under the Colony Ordinance, over the waters of " great ponds." The point actually decided in a recent Minnesota case (Minneapolis Mil'. Co. v. Water Com'rs of St. Paul, 58 N. W. R. 33 ; 8 Harv. Law. Rev. 62) also related to the taking of water from a pond ; but the court did not apparently rely an any special reservation of State authority over ponds, and the opinion seems to apply the principle to rivers also. The court appear to proceed upon the theory that the State is absolute owner of the bed of the Mississippi River, a doctrine not likely to be contended for in the case of the Nashua River.
 * Foot V. Edwards, 3 Blatchford, 310; Rundle v. Delaware, &c Co., i Wallace,