Page:Harvard Law Review Volume 8.djvu/171

155 POWER TO DIVERT AN INTERSTATE RIVER. 155 tain such an adequate provision for the recovery of damages as is required by the Massachusetts Constitution. This was the only constitutional question to which the attention of the court was directed. Morton, C. J. said that where the legislature authorizes a taking of property, and provides in the statute a mode of ascertaining and recovering the damages, " such statutory remedy is the only remedy to which the injured party can resort for acts done within the authority of the statute." He then says, p. 396 (the italics are ours) : — " It follows that the plaintiff cannot maintain an action of tort for injuries caused to him by any acts of the defendant which it was authorized to do under the statute, but his only remedy is the one pointed out by the statute." "The plaintiff recognises this principie ; but contends that the statute of 1867 is unconstitutional and invalid, because it does not make adequate provision for the recovery of damages caused by the defendant' s acts under it.'' The opinion then considers the adequacy of the statutory provi- sion for compensation, and holds it to be in compliance with the Massachusetts Constitution. Morton, C. J. then adds, p. 398 : — "We do not deem it important that the land of the plaintiff which was injured was outside of the limits of this State. The language of the act is general, and puts all water rights upon the same footing, and applies to a proprietor outside the State. Such proprietor certainly has no greater rights than the citizens whose lands or water rights within the State are injured by the acts of the defendant under the authority of the Legislature. Whether the constitutional objection we have considered would be open to a citizen of another State, whose lands or water rights in that State are injured, we need not discuss nor decide. " It follows that the plaintiff cannot maintain this action for damages caused by any acts of the defendant which are authorized by the statute." (The remainder of the opinion is to the effect that the defendant is liable in this action for acts done in excess of its statutory powers, and that the plaintiff may recover for such damages and such only as were caused by this excess.) The language of the court — " We do not deem it important that the land of the plaintiff which was injured was outside of the limits of the State " — must be construed with reference to the special