Page:Harvard Law Review Volume 8.djvu/172

156 156 HARVARD LAW REVIEW. topic then under discussion. The plaintiff, be it remembered, was not disputing the power of the Massachusetts Legislature to pass the statute, if only it contained a sufficient provision for compensa- tion. The sole question presented to the court by the plaintiff was that in relation to the constitutional adequacy of this part of the statute. The Court decided only that the location of the land was not important as bearing on the question whether this statutory provision for compensation was an adequate compliance with the requirements of the Constitution of Massachusetts; i.e., that a land- owner in New Hampshire cannot claim to have the Constitution of Massachusetts construed more favorably in regard to him than it would be in regard to a landowner in Massachusetts. Banigan v. City of Worcester,^ was decided by Carpenter, J. in the United States Circuit Court for the District of Massachusetts, in 1887. The city, under a Massachusetts statute containing pro- vision for compensation, had diverted, from a brook in Massachu- setts, water which would naturally have flowed through the plaintiff's land in Rhode Island. The plaintiff did not question the power of the Massachusetts Legislature to authorize this diver- sion. On the contrary, he claimed the benefit of the statutory remedy, and filed a petition in the Superior Court of Massachu- setts, praying for an assessment of his damages. Plaintiff subse- quently removed the case to the United States Circuit Court. The city moved to remand the case to the State court, and also tiled a demurrer to the petition. The question principally considered was the right to remove the case to the United States court. In an opinion of nearly two pages, a space of only fourteen lines is given to the point raised by the demurrer. It is not to be wondered at that the court was inclined to make short work of the demurrer. The objection to the petition came with a bad grace from the de- fendants. A decision in their favor involved one of two positions : either, (i) that their acts were not authorized by a statute, and that they were tort-feasors, liable in a common-law action of tort ; or, (2) that Massachusetts had conferred upon them power to do the injury to the plaintiff without making any compensation, and with- out being liable in any way. It is obvious that the demurrer of the defendants to the plaintiff's petition would not be likely to call the attention of the court to the validity of the statute so fully as if the question had been raised by the plaintiff's bringing a common- ^ 30 Fed. Rep. 392.