HOLYOKE COMPANY V. LYMAN, 82 U. S. 500 (1872)

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U.S. Supreme Court

Holyoke Company v. Lyman, 82 U.S. 15 Wall. 500 500 (1872)

Holyoke Company v. Lyman

82 U.S. (15 Wall.) 500


1. By the settled law of Massachusetts, the rights of fishery in such rivers as the Connecticut, even above the point where it is navigable for boats or rafts, are public rights, and, unless there be some express provision to the contrary, are subject to such reasonable regulations as the state may make for their protection, including the right to require of persons who own or build dams that they construct such fishways as will enable migratory fish to pass from the lower to the higher level of the water occasioned by such dams.

2. The provision of the Revised Statutes of Massachusetts, chapter 44, section 23, and General Statutes, chapter 68, section 41, declaring that acts of incorporation shall be subject to amendment, alteration, or repeal, at the pleasure of the legislature; reserves to the legislature the authority to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant or any rights vested under it and which the legislature may deem necessary to secure either that object or other public or private rights.

3. After a manufacturing corporation, chartered with authority to construct and maintain a dam across a river, paying damages to the owners of fishing rights above, and whose charter does not expressly exempt it from maintaining the dam without a fishway, and is subject under the provision above quoted to amendment, alteration, and repeal at the pleasure of the legislature, has paid such damages and constructed the dam without a fishway, so as to destroy the fishing rights above and to impair similar rights below (for the injury to which last no compensation has ever been made or provided), that corporation, or any other which purchases its dam under the authority of a subsequent statute, may be constitutionally required by the legislature to construct a fishway in the dam to the satisfaction of commissioners appointed by the legislature for the purpose.

The "General Laws" [Footnote 1] of the state just named provide that every act of incorporation passed since the 11th of March, 1831,

"Shall at all times be subject to amendment, alteration, or repeal at the pleasure of the legislature."

This general law being on the statute book, the legislature of the state in 1848 passed an act to incorporate the Hadley chanrobles.com-red

Page 82 U. S. 501

Falls Company for the purpose of constructing and maintaining a dam across the Connecticut River, and of creating a water power to be used by the corporation. The capital stock was fixed at $5,000,000, and it could hold $500,000 worth of real estate. The corporation was authorized and empowered "to construct and maintain a dam across the river" at a point named sufficient to raise the water to a height not exceeding one specified. The act in its fourth section read thus:

"The said corporation shall pay such damages to the owners of the present fishing rights existing above the dam which the said company is herein empowered to construct as may be awarded by the county commissioners of the counties in which said rights exist."

And a mode was provided by which either the company "or any owners of the said fishing rights" might at any time proceed to determine the damages done to them. Nothing was said about damages done to fishing rights below the dam, nor about making or maintaining or not making and maintaining any "fishway." No power was given to condemn the land of others for the site of the dam or for any other purpose.

The Hadley Falls Company built at great expense a dam, but without any fishway in it. Before this dam was built, shad were accustomed to pass up the river beyond the dam, and were of value to the private owners of riparian fishing rights for sale as food, and a source of income to such proprietors both above and below the dam. The dam, however, by preventing the passage of the fish up the river, destroyed the fishing rights above. And compensation to a large amount was made to the owners of fisheries above the dam for the injuries done to their said rights.

After the dam was built, and owing to it, the number of shad in the river below decreased in a small but appreciable degree, the dam preventing them from passing to their former spawning grounds above, and to some extent causing them not to return to the river after their annual passage to chanrobles.com-red

Page 82 U. S. 502

the sea. No owners of fishing rights below the dam had, however, ever claimed damages on this account.

On the 31st of January, 1859, the Hadley Company having failed, the same legislature passed an act incorporating the Holyoke Water Power Company, "for the purpose of upholding and maintaining the dam across the Connecticut River, heretofore constructed by the Hadley Falls Company," and gave to the new corporation full power

"to purchase, take, hold, receive, sell, lease, and dispose of all and any part of the estate, with all the water power, watercourses, water privileges, dams, rights, easements, and appurtenances thereto belonging, or therewith connected, which have at any time heretofore belonged to the Hadley Falls Company."

The part of the Connecticut River where this dam was constructed runs through the State of Massachusetts, and is not navigable.

In this state of things, the legislature passed in 1866 and subsequently, certain statutes, which authorized the commissioners of fisheries of the state to examine the several dams on the rivers of Massachusetts, and after notice to the owners thereof, to determine and define the mode and plan upon which suitable and sufficient fishways should be constructed. The statute regulated the plans, methods &c., and provided that if any proprietor of any dam should refuse or neglect to agree with the commissioners to build the fishways for thirty days after a plan was duly furnished to him, the commissioners might build the same at his expense. Under and in pursuance of this legislation, the Holyoke Company was required to build a fishway in their dam. The fishway required was one that would cost about $30,000, and, as appeared, would not diminish the water power of the company except when they desired to add to it by what are known as "flash boards." The company refused to comply with the requirement, contending that the acts of incorporation to the two companies constituted contracts, that by the payment of damages to the owners of fishing rights above the dam the Holyoke Company had the right to maintain "the dam," theretofore constructed by the Hadley chanrobles.com-red

Page 82 U. S. 503

Company, and that the acts of 1866 &c., were laws impairing the obligations of contracts, and so in violation of the federal Constitution. The court below, on a proceeding authorized by the statute to make them do so, adjudged otherwise, and its judgment was now here for review. chanrobles.com-red

Page 82 U. S. 506


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