Heard v. Talbot

Bigelow, J.

There can be no doubt, that the proprietors of the Middlesex Canal, under their original act of incorporation, St. 1793, c. 21, and under the additional act of 1798, c. 16, by which they were empowered to purchase and hold mill seats on the waters connected with their canal, acquired, as part of their franchise, the right to flow the land of the complainant; and that this right was in its nature a permanent easement or servitude, for which the complainant or those under whom he claims title had an ample remedy in damages provided in the third section of the original charter of the corporation. That remedy-was an exclusive one, and the time within which parties could legally avail themselves of it has long since passed away. These points have already been adjudicated. Stevens v. Middlesex Canal, 12 Mass. 466. Sudbury Meadows v. Middlesex Canal, 23 Pick. 36. Heard v. Middlesex Canal, 5 Met. 81.

It seems to us very clear that there is nothing in the facts of the present case to take it out of the principles settled by those decisions, and that there is no ground on which the claim of the complainant to damages under the mill act can be sustained against these respondents. They hold their title to the mills and water power raised by the dam which causes the land of the complainant to be flowed, under a grant from the Proprietors of the Middlesex Canal. By the deed under which they claim, the right is expressly reserved to the grantors to appropriate the water raised by the dam at all times to- the purpose of supplying their canal. It is therefore in the right of the canal corporation, and subject to this reservation, that the respondents claim to use and enjoy the mill privileges created by the dam which is the subject of this complaint. Unless, therefore, the corporation have surrendered or lost the right to keep up and maintain this dam, it having been already settled in 5 Met. 81, that the comnlainant has no claim for damages on aceouht thereof against the corporation, it would seem to follow that he has none against these respondents, who claim under* the corporation.

*119The sole ground on which he now rests his case is, that the canal corporation have since the year 1851 wholly disused their canal, filled up portions of it, and suffered it to remain in such condition, as to be entirely unfit for use. The argument is, that the right of erecting and maintaining a dam was granted to the corporation mainly for the purpose of enabling them to raise water for the supply of their canal, and the power to hold mills was wholly incidental to and dependent on the appropriation and use of the water raised by the dam for the great object for which the corporation was established and their franchise granted ; that the corporation, having abandoned the use of the canal, and ceased to supply it with water, can no longer claim the right, under their charter, to maintain the dam.

Admitting, for the sake of giving full force to this argument, the correctness of the premises on which it rests, we do not think the conclusion drawn from them legitimately follows. An essential link in the chain of reasoning is wanting. The argument assumes that the neglect or omission to use a right granted to a corporation, as part of their franchise, for the specific purpose for which it was given, necessarily works a forfeiture of the right itself. But this is not so, unless the right is expressly made conditional on the use, which is not done in the act incorporating the proprietors of the canal. The right is given absolutely, and without express condition or limitation. The corporation are still in existence. All the rights and powers conferred on them by law, and comprehended within the broad terms of their franchise, have never yet been legally forfeited or extinguished. Nor can they be, except by a surrender of the charter and its acceptance by the government, or by a forfeiture declared by the judgment of a competent tribunal, or by proceedings under St. 1852, c. 55.

In the absence of express conditions in an act of incorporation, by which corporate rights and powers are made to depend on their due exercise, a nonuser or misuser of them does not operate as a surrender or forfeiture of the charter. Although the disuse of the canal and its abandonment by the corporation may be a gross disregard of the duty imposed on them by *120law, and an essential violation of the terms and conditions implied from the contract entered into with the government by the acceptance of the charter, and, upon due proceedings had, might be a sufficient ground upon which to decree a forfeiture of all their corporate rights and privileges, they do not constitute any valid' ground upon which the exercise by the corporation of any of the powers conferred by their charter can be defeated or denied by third persons in collateral proceedings. This results from the very nature of an act of incorporation. It is not a contract between the corporate body, on the one hand, and individuals whose rights and interests may be affected by the exercise of its powers, on the other. It is a compact between the corporation and the government from which they derive their powers., Individuals therefore cannot take it upon themselves in the assertion of private rights, to insist on breaches of the contract by the corporation, as a ground for resisting or denying the exercise of a corporate power. That can be done only by the government with which the contract was made, and in proceedings duly instituted against the corporation. It would not only be a great anomaly to allow persons, not parties to a contract, to insist on its breach and enforce a penalty for its violation; but it would be against public policy, and lead to confusion of rights, if corporate powers and privileges could be disputed and defeated by every person, who might be aggrieved by their exercise. Therefore it has been often held, that a cause of forfeiture, however great, cannot be taken advantage of or enforced against corporations collaterally or incidentally, or in any other mode than by a direct proceeding for that object in behalf of the government. Angell & Ames on Corp. § 777, and cases cited. Boston Glass Manufactory v. Langdon, 24 Pick. 49. Quincy Canal v. Newcomb, 7 Met. 276.

It follows from these principles, that the franchise of the Proprietors of the Middlesex Canal, which includes the right of keeping up and maintaining the dam which flows the land of the complainant, being still in existence, it is not competent for him in this proceeding to show a nonuser or abandonment of the-canal, as a ground for denying the right of the corporation *121to continue the dam; and as the respondents hold their title under the corporation, and justify the flowing of the complainant’s land under the corporaté franchise, there is no ground for sustaining the present complaint under the mill act against the respondents. It is a sufficient answer to this suit, that the corporation have the legal right to maintain the dam as against the complainant, without payment of damages.

This view of the case renders it unnecessary to determine the question discussed at the bar, whether the right to purchase and hold mills, which was conferred on the corporation by the act of 1798, was the grant of an additional and distinct franchise or right, which may be used and enjoyed by the corporation or their grantees separately from and independently of the building and maintaining of a canal; or whether it was merely secondary and subordinate to the making of a canal and the raising of water for its supply, and was to cease and become extinguished when the right of keeping and using the canal should be surren ■ dered or forfeited. Nor have we occasion to decide whether the forfeiture or extinguishment of the charter of the corporation would operate to defeat the title of the grantees of the corporation to the mills and water power which had been acquired by the corporation lawfully, and conveyed to the respondents by deeds valid at the time they were made, by which the title became vested before such extinguishment or forfeiture took place. These are important and interesting questions; but it will be quite time enough to settle them, when the exigency of a case shall require, in order to adjudicate upon the rights of parties, that they should be judicially determined.

Complainant nonsuit.