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Mass. 413. There was also pending an appeal from the decree in the last-mentioned case, upon which a decision affirming the decree was handed down on March 1, 1909. (201 Mass. 371.) The other pending case was an information in equity under the provisions of St. 1906, c. 372, in which it was alleged that the New York, New Haven & Hartford Railroad Company had directly or indirectly acquired the ownership or control of shares of stock in the Boston & Maine Railroad.
Since my last report His Excellency the Governor, by a special message, dated April 20, 1909, recommended that the Legislature consider the advisability of creating a corporation authorized under proper limitations to purchase and hold the stock, bonds and other evidences of indebtedness of the Boston & Maine Railroad, and pointed out certain advantages which might accrue therefrom. Subsequently, on June 18, 1909, the Legislature enacted chapter 519 of the Acts of the year 1909, entitled, “ An Act to incorporate the Boston Railroad Holding Company.” This corporation was, in substance, a business corporation chartered “ for the sole purpose of acquiring and holding the whole or any part of the capital stock, bonds and other evidences of indebtedness of the Boston & Maine Railroad, and of voting upon all certificates of stocks so acquired and held, and of receiving and collecting dividends and interest upon said stock, bonds and other evidences of indebtedness," and the stock so acquired could not be sold without express authority from the Legislature. The act further authorized any railroad corporation chartered under the laws of the Commonwealth and existing at the date of the passage of the act to guarantee the principal of and the dividends and interest upon the capital stock, bonds, notes and other evidences of indebtedness of the Boston Railroad Holding Company, and after such guaranty to acquire and hold the securities of that company; and I am advised that, by authority of these provisions of law, the Boston Railroad Holding Company has acquired somewhat more than one hundred thousand shares of stock of the Boston & Maine Railroad, being the stock alleged in the pending information against the New York, New Haven & Hartford Railroad Company, hereinbefore mentioned, to be owned or controlled by it in violation of the laws of the Commonwealth, and that the stock and bonds issued to pay therefor have been guaranteed by the New York, New Haven & Hartford Railroad Company. Since the situation which existed at the date of the filing of such information has been so materially changed with reference to the ownership or control of the stock of the Boston & Maine Railroad, and since the ownership and control now existing in the Boston Railroad Holding Company have been expressly sanctioned by the Legislature, there is no further merit in the pending information already referred to; and that proceeding, as well as the bills in equity directed against the Worcester & Webster and the Webster & Dudley street railway companies, respectively, may properly be dismissed.
CHAPTER 86 OF THE RESOLVES OF 1908. By resolve of the Legislature approved May 1, 1908, it was provided that:
The attorney-general is hereby authorized and directed to inquire and determine to what extent, if any, the sovereignty of the commonwealth has been violated by the Berkshire Power Company, Connecticut corporation, which, by the erection and maintenance of a dam across the Housatonic river in the state of Connecticut, some distance southerly of the line between said state and the town of Sheffield in this commonwealth, is alleged have overflowed lands and highway in said town, causing great hindrance to public travel and menacing the public health. And the attorney-general is authorized to institute such proceedings in the premises in courts outside of this commonwealth as he may deem expedient, in the name and at the expense of the commonwealth.
This resolve is to be construed as calling the attention of the Attorney-General to the situation which exists with reference to the construction by the Berkshire Power Company, a Connecticut corporation, of a dam across the Housatonic River in the State of Connecticut, and the consequent flowing of adjacent lands in the town of Sheffield, in the Commonwealth of Massachusetts, which is stated to have caused great hindrance to public travel and has menaced the public health. From so much of the resolve as authorizes the Attorney-General to institute proceedings in courts outside the Commonwealth, it may further be inferred that it was the desire of the Legislature that, should conditions warrant it, an appropriate proceeding should be brought in the courts of the United States or in the courts of Connecticut for the purpose of abating the alleged nuisance.
In accordance with the desire of the Legislature as expressed in this resolve, I have made a careful investigation of the question presented therein, and have twice visited the locality where the effect of the dam referred to is manifested, once in the company of a competent engineer.
The facts in the case are, briefly stated, that the Berkshire Power Company, a corporation organized under the laws of Connecticut for the purpose, among others, of owning, constructing and operating power plants of various kinds for generating electricity, has constructed a dam across the Housatonic River at North Canaan, Conn., the height of such dam being about 6 feet, exclusive of flash boards. It is said that, taking into consideration all the circumstances, the difference between the water above and below the dam is approximately 8 feet. It further appears that the country above the dam is, comparatively speaking, flat, and that the raising of the water, even to the extent specified, results in the flowing of a considerable area of riparian land, including to some extent two or three of the highways of the town of Sheffield.
No detailed estimate of the damage to the highways has been presented to me. The flowed area is not permanently below the level of high-water mark, except as to a very small area, and the only effect of such flowing, of which I am advised, is to place water upon such highways and land at certain times and seasons, especially during what are called the spring freshets, and to render a certain area of the land in the village of Sheffield swampy. The dam of the Berkshire Power Company was erected under express authority of the State of Connecticut in Special Acts of Connecticut, 1905, chapter 374, an act which provides for the payment of damages to any person whose property is injured by the erection or maintenance of such dam.
Attempts have been made to settle the damages so occasioned to Massachusetts land owners, but in some cases these have failed, and there has been considerable litigation in the federal courts. It was there attempted to obtain an injunction against the company, but it was finally held that the complainant was estopped from claiming this form of relief, for the reason that he had participated in negotiations for a settlement. See Griffith v. Berkshire Power Co., and Hughes v. Berkshire Power Co., 158 Fed. 219. The court did, however, intimate that in the same proceeding the complainants might have their damages assessed. See also Andrus v. Berkshire Power Co., 145 Fed. 47, 147 Fed. 76, and 203 U. S. 596. It is clear, moreover, that owners of property in Massachusetts who are damaged have a remedy under the Connecticut statute, should they go into Connecticut to enforce it. Brickett v. Haverhill Aqueduct Co., 142 Mass. 394.
In any event, however, the Attorney-General has no authority to prosecute claims for the benefit of private individuals, except in the single instance of the unascertained individuals who may benefit by a public charitable trust; and there his power and duty in the premises rest upon the benefit which accrues to the public generally by the proper administration of a charitable trust, rather than upon any benefit which may accrue to the individuals whom, because they are unascertainable, he represents. Even if the State should make the claims of those individuals who have been damaged in their property rights its own, and should attempt to pursue such claims in the courts of the United States, where alone they may be so pursued, it would be unavailing. See New Hampshire v. Louisiana, 108 U. S. 76. If, therefore, any action upon the part of the Attorney-General is required in the premises, it must be upon the ground that the public health, convenience and safety are affected to such a degree as to constitute a public nuisance, or that the rights of the Commonwealth of Massachusetts, as a sovereign State, have been invaded, to such an extent as to justify an appeal to the Supreme Court of the United States for redress. It may be assumed that if the Commonwealth were dealing with a private individual or corporation within the limits of its jurisdiction, the flowing of the highways would constitute a public nuisance to the extent that such individual or corporation might be indicted and prosecuted therefor, if there were no reasonably proper ground for such flowage. It does not follow, however, that because an obstruction of the highway might be made the subject of a criminal indictment, it is therefore, and for that reason alone, a proper ground for action by the Attorney-General.
But it may be assumed that if an individual or corporation within the jurisdiction of the Commonwealth had committed the acts complained of, such acts, if unauthorized, would justify interference by appropriate proceedings upon the part of the Attorney-General in the interests of the general public who use the highways. The precise question to be determined is, therefore, whether or not such acts constitute a sufficient ground for a proceeding by the Commonwealth, by its chief law officer, in the Supreme Court of the United States, to vindicate its sovereignty or to protect the lives or property of its inhabitants from the acts of a citizen of another State, —- for such an action can be brought in no inferior court. Article III., section 2 of the Constitution of the United States provides that the judicial power of the United States shall extend to "controversies between two or more states," and controversies “ between a state and citizens of another state;” and by the same article and section it is also provided that in cases “ in which a state shall be a party, the supreme court shall have original jurisdiction.” See New Hampshire v. Louisiana, 108 U. S. 76, 86. Any action upon the facts here presented would undoubtedly be an action by a State against the inhabitants of another State, within the meaning of the Constitution, and would therefore have to be brought in the Supreme Court of the United States. That such an action will lie, has long been established. Thus it was said in the late case of Georgia v. Tennessee Copper Co., 206 U. S. 230, 237: