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THE
GREAT BILLERICA DAM CONTROVERSY
by Arthur L. Eno, Jr.
[This article appeared in the April
1982 issue of Towpath Topics, one of four old
issues recently posted]
The
image of the Proprietors of the Middlesex Canal as a
benevolent, quasi-philanthropic organization was shattered in
1859 by a petition to the Legislature signed by the selectmen
of Concord, Bedford, Wayland, Carlisle and Sudbury. The
petition was a complaint against the flooding of valuable
meadow land along the Sudbury and Concord Rivers, allegedly
caused by the raising of the dam at North Billerica by the
Canal corporation.
The
complaint was not a new one. Since 1809 there had been at
least five lawsuits against the Proprietors and their
successors, none of them successful. The Supreme Judicial
Court in 1815, in Stevens v. Proprietors of Middlesex Canal,
had decided that landowners who suffered damage from escaping
water from the canal were limited to the remedy provided in
the Canal act of incorporation, and could not sue under common
law. The statutory remedy, which had to be pursued within a
year of the damage, was, according to the Court, "a
cheap, easy and convenient mode of redress" and consisted
of a petition to the Court of Sessions. Unfortunately, that
Court was abolished in 1827, and no substitute tribunal was
provided until 1840. Nevertheless, when William Heard sued in
1840, seeking damages for the flooding of his land caused by
the rebuilding of the dam in 1828, the Court held that the
one-year limit still applied. Heard could not recover.
After
the Proprietors of Sudbury Meadows were incorporated, they
sued to have the dam removed, because its rebuilding in 1828
flooded the meadows. One of their contentions was that the
right of the Middlesex Canal corporation to build a dam in the
Concord River was limited by its charter to the period allowed
for construction - ten years. Chief Justice Shaw wrote the
decision of the Supreme Judicial Court, holding that: (1) the
Canal corporation had the right to build a dam when required,
with no time limit, so that the 1828 dam was legal; (2) the
Sudbury Proprietors were limited by their charter to clearing
obstructions from the Sudbury River. Their jurisdiction
extended only to Concord, where the Sudbury and Assabet Rivers
joined to form the Concord. And, in any event, according to
the Court, the North Billerica dam was not an illegal
obstruction. It is interesting to note that the petition for
incorporation of the Sudbury Proprietors speaks only of bars
and grass as causes of the flooding.
The
next case was brought by another Heard - David - but against
Charles P. and Thomas Talbot who had, in the meantime, bought
the land and water rights at North Billerica from the moribund
Canal Company. Heard's argument, presented by his attorney,
Benjamin F. Butler (who was later to be defeated for governor
of Massachusetts by Thomas Talbot), was that the Canal's right
to flood lands was only for the specific purpose of filling
the canal. Now that the Canal was abandoned and another buyer
was using the water for manufacturing purposes only, he was
subject to the Mill Acts which provided for recovery of
damages by injured parties. Again the Sudburyman lost, this
time on the ground that, regardless of physical abandonment,
the Canal corporation's franchise and charter were still in
effect and precluded the plaintiff's recovery.
The
Sudbury Proprietors by now were convinced they could not
recover through the courts and in 1859 they conceived the plan
to solve their problems in the Legislature (which, as we shall
see, had not been able to solve them in colonial times). In
that year they filed a petition to the Legislature, reciting
their complaints: without the knowledge of the upper riparian
owners, the Canal Proprietors raised the level of the old
Richardson Mill dam three feet three inches; the result
was to flood the meadows up-river, and to reduce their value
from $100 an acre to $20; this depreciation was wholly
chargeable to the Middlesex Canal Corporation; after Boston
started tapping into Lake Cochituate for its water supply,
because the Lake was one of the sources of the Sudbury River,
the Boston Water Board built two compensating reservoirs to
keep the flow of water in the Sudbury and Concord Rivers for
the benefit of the Middlesex Canal and its mill-owner
successors; these compensating reservoirs compounded the
flooding of the meadows; and, finally, "We believe that
the meshes of the Middlesex Canal Act were woven by the subtle
fingers of lobby legislation."
Other
supporting petitions were filed by groups of residents of
Wayland, Sudbury, Concord and Bedford. David Lee Child, an
attorney from Wayland, also filed a memorial supporting the
petitions. After lambasting the Canal Proprietors as a
"soulless body that has flourished over . . . us with its
exultant and humiliating boast" and speaking of
"chicanery and corruption of the lobby",
"unmerciful hands of wealthy monopolists and
speculators", he concludes with a stirring peroration:
"The
inhabitants of this Valley and this Town paid promptly and
cheerfully their full share of the price of that
sovereignty. On a bridge of this stream, now desecrated by
tyranny and the meanest rapacity, the first effective
resistance was made to our foreign tyrants; here the second
martyrs fell, blessing the water with their blood. Was this
that their sons might be given up to barbarous spoliation
and lingering torture by upstart tyranny at home?"
After
this flight of oratory, it is not surprising that the
Legislature acceded to the first of the four requests of the
Petition: to appoint commissioners to conduct a hearing to
ascertain the facts. The remaining demands were equally
modest: to revoke the charter of the Canal corporation (which
the Proprietors had already requested permission to give up)
and to extend the period of time during which both the Canal
Proprietors (or their successors) and the Boston Water Board
could be sued by the petitioners to recover their damages.
The
Special Commission appointed by the Legislature to investigate
the matter spent thirty full days in its work. The members
visited the river from Sudbury to Billerica on two occasions -
one of them traveling the whole distance by steam tug.
Formal
hearings lasting 15 days were held in Concord and in the State
House. At these hearings, the parties were represented by
eminent counsel: the petitioners by Judge Mellen (Chief
Justice of the Court of Common Pleas until its abolition in
1859) and by squire David Lee Child; the Town of Billerica and
the Talbots by Judge Josiah G. Abbott, who had recently
resigned from the Superior Court. Benjamin F. Butler, Lowell
lawyer (who had represented David Heard, a Sudbury proprietor
in his suit against the Talbots) at various times represented
some of the respondents or acted merely as an "interested
party" because he was also a mill-owner in down-river
Lowell.
For
almost two weeks testimony dragged on. Witnesses from Sudbury,
Concord, Bedford, Carlisle, Wayland, Lincoln and Billerica
testified to recent changes from the good old days, when they
could drive wagons onto the meadows to harvest the hay. Now
only an inferior type of grass grew there, and the meadows
were so soggy that it could not even be harvested. The damage
was caused by the wetness which made access onto the meadows
impossible, and by the stagnant water which spoiled the
quality of the grass.
One
of the plaintiff's witnesses, a Wayland clergyman named John
B. Wight, waxed eloquent about the condition of the meadows in
1815, when there was always great excitement about harvesting
large crops. "It was", he said. "like a vintage
in the South of Europe." Counsel for the respondents
gleefully produced a petition to the Legislature in 1816 by
David Baldwin and others (including several Heards)
complaining that "for a long time past" their
meadows have been "almost totally unproductive and
useless by reason of the waters remaining on them in the
months of June. July and August". This was only one of
the many contradictory statements in the case.
When
the respondents' turn came, they produced witnesses to prove
that there was no substantial flooding; that the level of the
dam had not been raised; and that other causes besides the dam
produced the flooding. Among the witnesses were Calvin Rogers,
the father-in-law of Thomas Talbot, and Luther W. Faulkner,
brother of the owner of the Faulkner Mills, also a respondent
in the case. But there were also more impartial witnesses.
Dudley Foster testified that his meadowland along the river in
Billerica was worth the same now as it had been before the
first dam was built: ten dollars an acre, a much more modest
appraisal than that of the Sudbury proprietors.
The
star witness for the respondents was James B. Francis,
long-time Chief Engineer of the Locks and Canals in Lowell,
who had recently published Lowell Hydraulic Experiments,
the bible for the study of hydraulics, and who was to become
later president of the American Society of Civil Engineers. It
was Francis' opinion that the dam had less to do with the
flooding of the Sudbury meadows than the weeds and sand-bars
in the river, and particularly the Fordway bar, located just
above the North Billerica millpond.
Several
witnesses testified to sporadic measurements of the depth of
the water at different spots along the river. But since these
were done at the request of, and by employees of, the Talbots,
the petitioners contended that the measurements had been taken
after the mill management opened the gates to lower the
water level.
As
Ben Butler had promised in his opening argument, the chief
witnesses against the petitioners were their fathers and
grandfathers. The respondents introduced records of petitions
to the Legislature and reports of town meeting action, dating
back to 1636, all referring to the flooding of the meadows
along the river, and seeking relief. In 1644, 1714 and 1723,
commissions were appointed to devise a plan to drain and
improve the meadows and to save the hay crop. In 1742, 1763
and 1789, as a result of petitions, Sewer Commissioners were
appointed to remove "ye Bars and Stopages in ye River
called Concord and Sudbury." A 1793 petition asked to
have included in a previous appointment of commissioners the
authority to clear obstructions at the Fordway in Billerica.
The 1793 Sewer Commissioners were appointed by Governor John
Hancock, who would shortly thereafter sign the Middlesex Canal
Charter. When the Commissioners "incurred a great expence
in and about the Ford Way in Billerica, in opposition to the
sentiments of a majority of the proprietors", several
proprietors including Ezekiel Howe (landlord of the Wayside
Inn) formally protested to the legislature. Clearly, the
proprietors were a difficult lot.
But
the main witness for the respondents was mathematics. They
sought to prove that it was mathematically impossible for the
dam to have been any lower when the canal was running. Three
feet of water were needed in the canal in order to accommodate
the boats. Since barely three feet of water now covered the
ledge at the entrance to the canal, the dam could not have
been lower in the days when the canal was operating. It was
also argued that the bottom of the penstock leading to the
Faulkner Mill was now 30 inches below the top of the dam; if
the level of the water fell below 30 inches below the present
level, no water would flow into the penstock, and all the
industries which used the water would be unable to operate.
Finally, the deed to the Faulkners from the Canal Proprietors
limited their use of water from the river unless the level
reached a certain mark on a bolt in a rock still in existence.
The petitioners, of course, contended that the present bolt
was not the original one, but that it had been moved.
Finally,
the testimony ended; it occupies 255 printed pages in the
report.
Judge
Abbott made the closing argument for the Talbots. He argued
that the dam at North Billerica was undeniably legal from
1708, when the Town of Billerica granted land and water rights
to Christopher Osgood, Jr., on condition he establish and
maintain there a grist mill, until 1798, when the Middlesex
Canal Proprietors rebuilt the dam. All the witnesses but one
agreed that this consisted only of making the dam tighter, and
not raising the height. Then, was the dam raised in 1828? All
the petitioners' witnesses agreed that everything was fine
before, but wet after 1828. This was probably due to wishful
thinking and to the human tendency to look back on the past as
rosy. Actually, the complaints started in the seventeenth
century, and the physical facts disproved the contention that
the dam was now higher than it used to be.
Abbott
gave his explanation of the reasons for the flooding at the
present time: For two centuries, crops were taken off the
meadows and nothing was ever put back on them, naturally
resulting in erosion and poor soil; the earlier efforts to
clear the river of weeds had substantially ceased; and,
finally, the increased use of reservoirs up-river for
manufacturing resulted in the concentration of water during
daylight hours in the formerly dry summer season.
He
insisted that the test measurements showed very little effect
above the Fordway if the water at the dam was raised or
lowered; but there was a corresponding raising or lowering at
the Fordway when water was released into the Sudbury River
from the reservoirs up-river.
Finally,
Mr. Talbot was an innocent purchaser who had purchased a
valuable right which, as far as anyone knew, was a perfectly
legal one. It would be unconscionable to deprive him of his
purchase by an act of the legislature which would clearly be
unconstitutional.
Judge
Mellen, responding for the petitioners, pointed out that it
was only ex post facto laws making conduct criminal
which were proscribed by the constitution.
Mellen
repeated the criticisms of the original passage of the
Middlesex Canal legislation which, he said, was rushed through
the legislature in 1793, at the end of the May session, when
the country members had either left for their hoeing and
haying, or were anxious to be gone, and when a bare quorum was
present.
Survey
of Billerica Mills (1859): JPG
PDF
He
pointed out that the Act of Incorporation had been criticized
by two Chief Justices as "somewhat loosely and
inartificially drawn" and "obscure, confused, and
almost unintelligible in its terms."
He
claimed that the 1828 dam (with its 11 inch flashboards) was
37 or 38 inches higher than the original dam; witnesses
testified that the old dam, which was allowed to remain in the
water after the new one was built in 1828, was still visible
and that the top was 16 inches below the top of the stone dam
and 26 or 27 inches below the top of the present flashboards.
Mellen
maintained that Talbot's measurements were set up - he let
down the water then sent his people to measure it. The
testimony of James B. Francis he dismissed on the ground that,
although an eminent engineer, he was not sufficiently
acquainted with the facts in the case, so that his opinion in
this case "was not worth a pin."
The
Committee reported its findings to the Legislature: There was
more flooding than formerly and the damage was material. One
of the causes was the increased height of the dam, and another
was the presence of obstructions in the river. No relief could
be had against the Proprietors of the Canal because of the
statute of limitations. Up to this time the Talbots could not
be sued successfully because the Canal charter was still in
existence. But since within the last few months the Canal
charter had been extinguished, the Committee felt that the
parties ought to pursue their remedies in Court. But if the
Legislature did not agree, the Committee recommended increased
appropriations for clearing the river of obstructions and the
appointment of a committee to negotiate with the Talbots for a
reduction in the level of their dam. Finally, if the
Legislature did not concur in these recommendations, the
Committee made a third recommendation: a special act
authorizing the Proprietors of Sudbury Meadows to lower the
Billerica dam upon paying to the mill-owners full damages to
be ascertained by a jury.
On
April 4, 1860, the last day of the session, chapter 211 of the
Acts of 1860 was passed, providing for the appointment by the
governor of a commission of three members with the "power
and authority to take down and remove the dam at North
Billerica erected by the Proprietors of the Middlesex
Canal" to a level 33 inches below its existing
height..." and when the same is so removed it shall not
be again rebuilt."
The
Talbots and the other mill-owners were stunned by this
unexpected result. When they recovered from the shock, the
Talbots swung into action to protect their investment. They
retained James B. Francis to make more extensive engineering
studies and petitioned the Legislature for repeal of chapter
211.
The
campaign began with a pamphlet "Statement to the
Public" tracing the history of the 1860 Act, pointing out
that it had been reported and passed on the same day - the
last of the session, and suggesting that the meshes of the Act
relating to the tearing down of the Billerica dam were also
"woven by the subtle fingers of lobby legislation."
The pamphlet quoted the authority of James B. Francis and set
forth the argument of the petitioners which would later be
made to the Legislature.
On
March 9, 1861, a hearing was had before a joint special
committee of the legislature on the Talbot repeal petition.
Judge Abbott again represented the Talbots and made an
argument of 46 pages.
On
March 20, the committee reported. Rejecting the argument of
the Sudburymen that the flooding of the meadows was dangerous
to public health, the committee pointed out that the records
of the Secretary of State showed greater longevity of life in
Wayland and Sudbury than elsewhere in the State and County.
The committee concurred in recommending, as the Talbots
requested, a temporary suspension of the Act of 1860, and the
appointment of three civil engineers to study the question in
depth. The law was passed as chapter 154 of Acts of 1861.
One
of the engineers appointed by the governor was Charles S.
Storrow, formerly manager of the Boston & Lowell Railroad
and Agent of the Essex Company in Lawrence (counterpart of the
Locks and Canals in Lowell), a distinguished civil engineer
who is not responsible for the engineering and construction of
Boston's Storrow Drive.
The
committee made extensive tests; 35,000 readings were taken on
a regular schedule. Its report speaks of the circuity of the
channel of the Sudbury and Concord Rivers, and of the
concentrated release of water by the up-river reservoirs in
the summer during the day. It concluded that reducing the
level of the water at the Billerica dam 16 1/2 inches would
result in a lowering of only 8 inches at the Fordway, 6 1/4
inches at Concord, and would have no perceptible effect on the
river in Wayland and Sudbury. The results would be
substantially the same if the level of the dam were reduced by
33 inches. But clearing the river of weeds would reduce the
level of the water by 6 inches.
Acting
on the report of the commissioners, the Talbots now petitioned
the 1862 legislature for total and unconditional repeal of the
Act of 1860.
Remonstrances
were filed against repeal by Concord and other Southern
Middlesex communities and their residents. The battle lines
were drawn when the Talbots were joined by their Billerica
neighbors, 412 of whom signed a petition in favor of repeal -
on the ground that removing the dam and lowering the water
level in the river would damage their valuable cranberry
crops!
On
March 13, 1862, little more than a year after the prior
hearing, Judge Abbott again presented the Talbots' argument in
favor of repeal - essentially the same one as before, but now
expanded to 60 pages.
Two
weeks later, the committee reported. On the basis of the
engineering report of the special commission, it reported that
it found no damage to the meadows from the dam. It questioned
whether the Legislature should buy and destroy dams and mills
(which employed people) in order to encourage agriculture in a
small area of the state. It concluded that the 1860 Act had
been passed in haste and without sufficient investigation. As
a matter of fact, even the claim that 10,000 acres were
affected seems to have been an exaggeration.
The
committee unanimously recommended repeal and on April 25,
1862, the bill repealing the Act of 1860 was signed by the
governor and became law.
Thus
ended the battle which, for well over half a century, was
energetically waged in Court and in the Legislature. As
befitted such an important question, the cast of characters
was outstanding: Besides Abbott, Butler and Mellen, other
counsel appearing on either side included Rufus Choate,
Jeremiah Mason, Franklin Dexter, Sam Hoar and Benjamin R.
Curtis, later a justice of the Supreme Court of the United
States, who resigned to defend Andrew Johnson from the
impeachment proceedings brought by Ben Butler for the House of
Representatives.
The
main battle was over, but there were still minor skirmishes to
come: in the 1890s a proposed public health bill gave the
state Board of Health the authority to spend up to $10,000 to
dredge the bars in the Concord River at Billerica, provided
the Board could secure an agreement from the mill-owners to
lower the dam during the summer months. The bill did not pass
in this form, but the Board was authorized to spend money in
dredging and removing weeds from the river.
And
in 1902 the legislature voted down a bill to authorize the
Harbor and Land Commissioners to spend $25,000 to cut out and
remove the Fordway bar.
In
the end, after almost constant victories, the manufacturing
and mercantile interests won out over agricultural ones. And
finally, the controversy was settled for good when the Federal
and State governments and agencies acquired most of the
meadows as a wild life preserve and for conservation purposes. |
