Bristol v. Ousatonic Water Co.

We do not deem it necessary to determine whether a party is entitled by the common law to have the waters of a river connected with the ocean kept free of obstructions from its mouth to its source, so that the fish known as shad may have a free and uninterrupted passage to his fish*412ing ground; for however the ■ common law may he in this respect, we are satisfied that the plaintiff cannot maintain this action against the defendants for any injury he may have sus-*’ tained to his fishery, by reason of the dam erected and maintained by them.

*413This action is an action at common law for a tort. The plaintiff in his declaration alleges, as he must have done in order to maintain the action, that the defendants wrongfully erected and maintained a dam across the Housatonic river. This allegation is an allegation of substance. It must be proved upon the trial, as well as set forth in the declaration. Suppose the declaration had declared, in accordance with the facts of the case, that the defendants had erected the dam under a resolution of the legislature, fully authorizing them to do so, so that whatever had been done by them had been done according to law, would the declaration have been regarded as sufficient upon demurrer? In order to render the erection of the dam by the defendants actionable at common law the dam must be a nuisance to the plaintiff, and liable to be abated as such by a court of equity, after the plaintiff had established his right to its discontinuance in an action at law. How could this be done in the present case ? No claim is made that the defendants’ charter does not fully authorize them to do whatever lias been done by them. No *414claim is made that the charter is unconstitutional and therefore void; but on the contrary it seems conceded in the argument that the legislature had the power to authorize the erection of the dam in tide-water, in order that the water power and navigation of the river might be improved. How then can this action be sustained ? It is absurd to say that the defendants were justified in erecting and maintaining the dam, and still are liable in damages for having erected and maintained it. They could only be liable in damages in any event, if they had proceeded without authority from the legislature; of what avail then is the act of incorporation if still they continue liable ? We think it is clear that this action cannot be maintained so long as the defendants’ charter is of any validity.

The plaintiff treats the case as if the charter had required the defendants to procure an assessment of his damage in the mode provided for other cases and pay the same before obstructing the river, and, failing to do so, the charter afforded them no protection so far as the plaintiff is concerned. But there is no foundation for this claim. The charter expressly authorized the defendants to erect the dam without paying damages to the plaintiff. It was supposed that the plaintiff woidd receive no damage to his fishery, the charter providing for fisli-ways to be constructed by the defendants in the dam, and it is only in the event that the fish-ways shall prove inadequate to the free passage of shad up and down the river that any damage is provided for the plaintiff. The defendants complied with their charter in this particular, and put in a fish-way at great expense, and but two years had elapsed previously to the bringing of this suit, in which its practical operation could be tested, and the fact ascertained whether it would be adequate to the purpose. The fisli-way has since been altered to some extent by the direction of the fish commissioners, and it would seem that the expectation of yet making it successful has not been abandoned; at all events there is no finding to that effect. The defendants’ charter clearly implies that the owner of a fishery is not to be entitled to damages so long as it may reasonably be expected that *415a fish-way will he constructed by them within a reasonable time that shall be adequate to the free passage of shad. When that expectation is no longer justified, and a finding . shall be made to that effect, we will then consider whether the plaintiff has any other mode of redress for the injury he may have sustained to his fishery besides the one provided in the defendants’ charter, taken in connection with the statute of 1871 on the same subject.

In conclusion, we think the plaintiff’s action cannot be sustained in the present state of the case, even if the common law had established the right of the owner of a fishery upon the river to have its waters kept free and unobstructed for the passage of shad up and down the stream. That right has been taken away or suspended by the defendants’ charter, if it ever existed; and will so remain until the time when there shall be no longer any reasonable expectation of an adequate fish-way being made in the dam, and within a reasonable time under all the circumstances, and a reasonable opportunity afterward shall have been afforded the defendants to assess and pay the plaintiff’s damage in accordance with the provisions of their charter.

We advise judgment for the defendants.

In this opinion the other judges concurred.