Page:Harvard Law Review Volume 8.djvu/157

141 POWER TO DIVERT AN INTERSTATE RIVER. 141 land in New Hampshire is a right of property in Massachusetts^ and hence can be taken by the Massachusetts power of eminent domain. But this position is not tenable. The fact that the New Hampshire riparian owner may bring an action in Massachusetts does not necessitate the conclusion that his injured property is in Massachusetts. His property right in New Hampshire is injured by a tort in Massachusetts. The damage occurs in New Hamp- shire. The act that occasioned the damage was done in Massa- chusetts, Hence the law permits an election of remedies. Two things are required to give an action : i, property in the plaintiff ; 2, a violation by defendant of plaintiff's property right. If the property damaged is in one State, and the act which caused the damage is done in another State, the better view is that there may be an action in either State ; in the State where the act was done, or in the State where the damage resulted. The reason is that otherwise there might often be a failure of justice from want of a remedy practically available. The right of the New Hampshire riparian owner to have the stream flow to his land is a property right in New Hampshire. It is an easement annexed to his land in New Hampshire.^ This is put with great distinctness by Judge Story, in Slack v. Walcott, 3 Mason, 508, p. 516. In that case, the plaintiff owned a mill in Massachusetts on a river which formed the boundary between Massachusetts and Rhode Island. The defendant diverted water from the river on the Rhode Island side. Story, J., said of the plaintiff's right: "The right, however, is not a distinct right to the water, as terra aquA cooperta, or as a distinct corporeal heredita- ment, but as an incident to the mill, and attached to the realty. It passes by a grant of the mill, and has no independent existence. It is not real estate situated in Rhode Island. It is an incorporeal hereditament annexed to a freehold in Massachusetts. And a con- veyance of the mill, good by the laws of the State where the mill is situated, conveys all the appurtenances. The wrong done by stopping the flow of the water by any obstruction or drain in Rhode Island is an injury done to the mill itself in Massachusetts. In a just sense, the wrong may be said to be done in both States like the analogous case of an injury to land lying in one county by an act done in another county."^ So the correlative right of the 1 See 45 Am. Rep. 661-662. Knowlton, J., 147 Mass. pp. 561, 566-567. Mf'g Co. f .Newton, 22 Pick. 22, Pingree z;. County Comr's,i02 Mass. 76; BostonWater
 * For decisions as to the locality of water-power for purposes of taxation, see Boston