Page:Harvard Law Review Volume 8.djvu/158

142 142 HARVARD LAW REVIEW. Massachusetts riparian owner that the river shall not be obstructed in New Hampshire so as to flow back and flood his Massachusetts land is a property right in Massachusetts, although this Massachu- setts right may be violated by an act done in New Hampshire. If then the right of Massachusetts to do this injury to the New Hampshire riparian owner cannot be justified under the Massachu- setts power of eminent domain, it must be justified, if at all, under Massachusetts' general power of sovereignty. And it follows that, if Massachusetts has the power at all, it has the power untrammelled by any necessity of making compensation to the New Hampshire .proprietors. For it is only when there is a taking under eminent domain that the necessity for com sensation exist. The question then is, has Massachusetts the power to do this uncompensated injury to the New Hampshire proprietors — not the power to compel them to sell their rights at a valuation to be fixed by third parties — but a power to utterly destroy their rights without giving any equivalent whatever ? The claim of the city will probably be : — 1. That Massachusetts, as a sovereign State, has the right to do the acts in question. 2. That even if such acts of the State are not justifiable by the rules of so-called international law, still neither the State nor its agents can be called to account in a court of justice for the doing of the acts ; or, in other words, that there is no enforceable remedy in a court of justice either against the State or its agents. In support of the first position, the city will probably cite a dictum in Mannville Co., v. Worcester,^ and the decision of the Supreme Court of Massachusetts in Brickett v. Haverhill Aque- duct Co.^ And it will probably be contended that the latter case is an authority directly in point to sustain the supposed pretension of Massachusetts ; and that the ratio decidendi is to be found in the dictum in the earlier case, which, it will be said, is to the effect that Massachusetts can (lawfully) " authorize any acts to be done within its limits, however injurious to lands or persons outside them." In support of the second position, the argument for defendant will probably be in substance as follows : Massachusetts is a sov- PowerCo. ». Boston.gMet. 199,204; CochecoMf'gCo.,z'. Strafford,5i N.H. 455, 461- 463, 466, 467, 469 ; .'-tate of Minnesota v. Minneapolis Mill Co., 26 Minnesota, 229. 1 138 Mass. 89, p. 90. 2 142 Mass. 394.