Page:Harvard Law Review Volume 8.djvu/173

157 POWER TO DIVERT AN INTERSTATE RIVER. 157 law action of tort against the defendants. Whether the plaintiff may elect to avail himself of the statutory remedy is one thing. Whether the plaintiff can be restricted to that remedy is another thing. The entire opinion of Judge Carpenter on this part of the case is as follows : — " On the demurrer the defendant alleges that the petitions show no case for relief under the statute. The argument is, that since the lands of the petitioners are in Rhode Island, and their rights in the waters of Tatnuck Brook are appurtenant to those lands, the petitioners cannot claim a remedy under this statute unless it be held to have extra-territorial effect, which, of course, is inadmis- sible. I cannot agree with this argument. It has been held by the Supreme Court of Massachusetts that the owner of land in an adjoining State may have, as appurtenant to such land, an interest in land or water in Massachusetts, which may be protected by suit in the courts of that State.^ I am strongly inclined to the opinion that the decision in that case is of binding force on this court in the case at bar ; and, even if it be not so, I am inclined to follow that case as being of high authority, and well supported by the reasoning of the opinion." With so much of this opinion as holds that the statute cannot have " extra-territorial effect," we can find no fault. Whether the learned judge means to intimate that the right of the Rhode Island landowner to have the water flow through his land is so far a prop- erty right in Massachusetts that Massachusetts may take away the entire right by exercising its power of eminent domain, does not seem clear. If such is his meaning, we must differ, for reasons heretofore stated. It is safe to say that this case cannot be re- garded as a decisive authority, entitled to controlling weight upon the point now under consideration. We now call attention to some authorities which tend to sustain the view we have taken of the rights of the New Hampshire riparian proprietors. The Holyoke Water Power Co. v. Connecticut River Co., decided by Shipman, J. in the United States Circuit Court for the District of Connecticut, in 1884,^ strongly supports our view: This was a bill in equity for an injunction. The Connecticut Legisla- ^ Mannville Co. v. City of Worcester, 138 Mass. 89 • 52 Conn. (Supplement) 570 ; Same Ca^^ C more fully reported), 22 Blatchford, 131.