220 



NEW ENGLAND FAKMER. 



May 



')f commissioners, in the manner provided in this 

 chapter." 



The statute provides that the proprietors, or 

 a greater part of them in interest, may apply by 

 petition to the Court of Common Pleas, setting 

 forth the proposed improvements, and for notice 

 t ) the proprietors who do not join in the petitionj 

 and for a hearing. The Court may then appoint 

 three, five or seven commissioners, to cause the 

 improvements to be effected. The commission- 

 ers are authorized to "cause dams or dikes to be 

 Frected on the premises, at such places and in 

 such manner as they shall direct, and may order 

 the land to be flowed thereby, for such periods 

 of each year as they shall think most beneficial, 

 and also cause ditches to be opened on the prem- 

 ises, and obstructions in any rivers or streams 

 leading therefrom to be removed." 



Provision is made for assessment of the ex- 

 penses of the improvements, upon all the pro- 

 prietors, according to the benefit each will de- 

 rive from it, and for the collection of the amount 

 assessed. 



"When the commissioners shall find it neces- 

 sary or expedient to reduce or raise the waters, 

 f r the purpose of obtaining a view of the prem- 

 ises, or for the more convenient or expeditious 

 lemoval of obstructions therein, they may open 

 the flood-gates of any mill, or make other need- 

 ful passages through or round the dam thereof, 

 or erect a temporary dam on the land of any 

 jierson, who is not a party to the proceedings, 

 aiid may maintain such dam, or such passages 

 for the water, as long as shall be necessary for 

 the purposes aforesaid." 



Provision is made for previous notice to such 

 persons who are not parties, and for compensa 

 ti-n to them for injuries occasioned by the in 

 terference, and for appeal to the Courts. 



This statute gives by no means the powers 

 necessary to compel contribution to all necessary 

 drainage, because, first, it is limited in its appli- 

 cation to "meadow, swamp, marsh, beach or oth- 

 er low land ;" the word meadow in New Eng- 

 land, is used in its original sense of flat and wet 

 land ; secondly, the statute seems to give no au- 

 thority to open permanent ditches on the land 

 of others than the owners of such low land, al- 

 though it provides for temporary passages for 

 the purposes of "obtaining a view of the prem- 

 ises, or for the more convenient or expeditious 

 removal of obstructions therein." The word 

 "therein" referring to the "premises" under im- 

 provement, so that there is no provision for out- 

 falls, except through natural streams. 



On the other hand, it is manifest that the State 

 assumes power sufficient to authorize any inter- 

 ference with private property that may be ne- 

 cessary for the most extended and thorough 

 drainage operations. The power which may com- 



pel a man to improve his portion of a swamp, 

 may apply as well to his wet hillsides, and the 

 power which may open temporary passages 

 through land or dams without consent of the 

 owner, may keep them open permanently, if ex- 

 pedient. 



By an act of the Legislature of Massachusetts, 

 passed March 28th, 1855, ample provision is made 

 for compulsory outfalls. The act provides that 

 any person having the ownership of low lands, 

 swamps, &c., that, by means of adjacent lands 

 of other persons, or of a highway, cannot be 

 worked, drained or used in the ordinary manner, 

 without crossing said lands or highway may be 

 authorized to establish roads, drains, &c., to said 

 places. The process is by a petition to the Coun- 

 ty Commissioners, notice to all parties interested 

 and a hearing. The Commissioners, if satisfied 

 that the request is reasonable, shall proceed to 

 lay out and establish the improvements, and as- 

 sess damages equitably among parties benefited, 

 to be paid to the party whose land is thus bur- 

 dened. 



An appeal lies to the county by either party 

 dissatisfied with the award, as in cases of the lay- 

 ing out of highways. By an act of May 30th, 

 1857, it is provided that where the lands are all 

 in one town, the selectmen may act instead of 

 the County Commissioners. 



By the provisions of these acts, we understand 

 that any owner of "low lands, lakes, swamps," 

 &c.. may, in proper cases compel his obstinate 

 neighbor to allow him to open such drains through 

 adjacent lands as may be necessary to perfect his 

 work. 



The provision is broad enough for all low lands 

 or swamps, and should be extended to all other 

 lands, dams and other obstructions whatever, and 

 thus place in the hands of the proper authorities 

 complete power to do what is just and equitable, 

 and for the public good. 



It would seem, then, that the commonwealth, 

 which is perhaps as conservative in her legisla- 

 tion as any other, assumes and exercises all the 

 power necessary to authorize the most complete 

 system of drainage. Whatever the powers of 

 the States, upon the points suggested, there is no 

 doubt of their power to protect the farmer, to 

 some extent, against the encroachments of mill- 

 owners and water-power companies. Our courts 

 are teeming with suits between land-owners and 

 these companies about fiowage, and in these suits 

 the corporations have usually the advantage of 

 wealth and influence and concert of action, as 

 well as of knowledge of the true state of facts, 

 while the land-owner has the benefit usually of 

 strong sympathy on the part of jurors. 



The appointment of commissioners to examine, 

 define and record, from time to time, the height 



