
    The Inhabitants of the Towns of Stoughton, Sharon, and Canton, versus Edmund Baker and Daniel Vose.
    If the legislature appoint a committee to cause alterations to be made in the fish ways in a river, and order a portion of the expense of such alterations to be borne by the owners of the dams where the alterations shall be made, such owners are not held to pay a portion of the expense of such committee.
    A grant of a dam and wear upon a river, with the exclusive right to take fish m the river below the dam, does not preclude the public from a right to have a convenient passage-way for the fish to ascend the river to the ponds.
    Every owner of a mill-dam holds it under the limitation that a sufficient and reasonable passage-way shall be allowed for the fish; and this limitation is not extinguished by any neglect of the government, in compelling the owner to comply with it.
    The government may compel such compliance by their committee; but if a prostration of the dam, not within such limitation, be made by such committee, the owner may have a remedy by an action at law.
    Such committee may cause the alterations to be made under their direction; but they are not personally answerable to those whom they employ; and as the exercise of their authority is personal, it cannot be delegated to any other person, or to even one of their own number.
    This was a special action of the case, in which the plaintiffs declare that on the 15th day of March, 1805, the legislature of this commonwealth appointed N. Tillinghast, E. Loud, and E. Turner, Esquires, a committee, after giving due notice to the parties, to repair to the several darns on Neponset River, between the sea and Paul’s bridge on said river, and to order such alterations to be made in the fishways through the several dams aforesaid, or to cause such new fishways to be made around said dams, or either of them, as in their opinion, or the major part of them, should be sufficient for the passage of shad and alewives at the dams aforesaid. The expenses incurred by making such alterations, it was resolved, should be borne one fourth part by the towns of Stoughton, Sharon, [*523 ] and Canton, and three * fourth parts by the respective owners of the dams where the alterations should be made. And the plaintiffs aver that, in pursuance of said resolve, the said Tillinghast, Loud, and Turner, on the 30th day of May, in the same year, did repair to the dam on the said Neponset River, between the sea and Paul’s bridge, owned by the defendants, and ordered certain alterations to be made in the fishways through the same, sufficient for the passing of shad and alewives; in pursuance of which order the said alterations were made ; in and about the doings of which the plaintiffs incurred and paid expenses to the amount of 274 dollars 53 cents, three fourth parts of which is 205 dollars 90 cents; of all which the defendants had notice, and thereby, and by force of the resolve aforesaid, became liable, <fcc., and promised, &c. There was also a count for money laid out and expended.
    Upon the general issue pleaded, a verdict was taken for the whole sum demanded by the plaintiffs, subject to theopinionof the Court on a case stated by the parties, in which it is agreed that the resolution declared on passed the legislature; that the defendants are seised in fee simple of a water-mill and dam on Neponset River, between the sea and Paul’s bridge; that the said committee, having heard all the parties, ordered certain alterations to be made in the fishway through the dam of the defendants, who were notified of the said order, and requested by the plaintiffs to make the said alterations, which they refused to do until the then next spring; that after-wards, in the same year, the plaintiffs applied to the said Loud, who had been appointed a sub-committee to see that the alterations, ordered as aforesaid, were complied with, and the said Loud, upon being informed of the said refusal of the defendants, ordered the plaintiffs to make the said alterations in a prudent, faithful manner ; that the plaintiffs afterwards caused the said alterations to be made, and expended therein, for work and materials, the sum of 123 dollars 82 cents, and the further sum of 150 dollars 71 cents, in paying the said committee and sub-committee for their time and expenses in performing the services aforesaid, and in paying the persons who attended on them in behalf of the plaintiffs when performing the said services; *that notice of the expen- [#524 ] ditures was given to the defendants, and payment demanded of them.
    The case further states that the defendant’s dam is an ancient dam, and their title thereto is derived from one Israel Stoughton, who acquired his right thereto in the year 1633, by grants to him from the town of Dorchester, in which the land then was, of a mill privilege, of a wear adjoining his mill, and an exclusive right to take shad and alewives between the wear and the bridge, with a candi ■ tian that he was to sell the alewives there taken to the plantation at five shillings the thousand, and other fish at reasonable rates; and he was not to transfer the mill to any one without the consent of the plantation first had and obtained; that the said grants were confirmed by the General Court in the year 1634; that no fishway was ever made through the said dam until the year 1789, when the fishway was made (the alteration of which was directed as aforesaid) pursuant to a resolution of the General Court, passed February 17, 1789, at the expense of the said towns of Stoughton and Sharon, on whose petition that resolution passed.
    If, on these facts, it should be the opinion of the Court that the plaintiffs were by law entitled to recover three fourth parts of the sums aforesaid, judgment to be entered according to the verdict. If their opinion should be that the plaintiffs are entitled to recover only the amount expended by them in labor and materials, then the verdict is to be amended by reducing the sum there found to 92 dollars 87 cents. But if their opinion should be that the plaintiffs are entitled to recover any thing of the defendants, the verdict to be set aside, and a general verdict entered for the defendants. And now,
    
      Jackson, for the defendants,
    moved that the verdict be set aside; and he argued that the plaintiffs, being the successors of the ancient town of Dorchester, under whose grant the defendants derive their title, were estopped from disturbing the defendants in the enjoyment of the grant of their predecessor.
    The defendants having, by grant of the town, confirmed by the government of the colony in its earliest period, been so long possessed of this estate, the legislature had no right, in [*525] * 1805, to interfere and take from them their estate. The government was deceived, and the resolve was void, as militating with the declaration of rights. The privilege of erecting a mill-dam is as strictly an estate as land itself, and in many situations it is of very great value.
    But if the government had a right to interfere, and to make regulations as to the defendants’ mode and degree of enjoying their estate, nothing can be more absurd or unconstitutional than to oblige them to defray the expenses of the measure by which their estate is deteriorated.
    The expenses of the committee are not only liable to the same objection, but, further, these are not within the words of the resolu tian, viz., “ the expenses incurred by malting such alterations.”
    
    
      Wheaton, for the plaintiffs,
    observed that this action was brought solely to recover the expenses arising under a resolution of the legislature intended to regulate the passage of fish in Neponset River. If the legislature had authority to pass that resolution, there can be no doubt of the plaintiff’s right to recover what has been properly ex pended under the provisions of the resolution, and assessed on the defendants by the same provisions.
    The uniform and uninterrupted practice of the legislatures, as well before as since the revolution, to regulate the taking of fish in all the rivers and streams within the territory, is very strong evidence of the general opinion that they had a right so to do. Besides which there has been an adjudication of this Court,  in the case of this individual dam, in which it was decided that the legislature had authority to provide for the passage of the fish through it.
    The resolution, in this case, amounts to no more than the exercise, in a particular instance, of the superintending care of the government in relation to the fisheries. The plaintiffs claim no exclusive right to the fish in this river. They merely applied to the legislature to regulate the exercise and enjoyment of a general right. The legislature did so, and when these defendants refused to do what by law they were bound to, the plaintiffs did it for them, and now demand an indemnity.
    
      * As to the expenses of the committee, Wheaton had [ * 526 ] not been very sanguine; but as it was a necessary means towards obtaining the end, it should seem that it might be included in the expenses incurred by making the alteration.
    
      Jackson, in reply,
    insisted that no authority was vested in the commonwealth to take the property of an individual without compensation : much less could the individuals, whose property was taken or injured, be held to pay the expense attending the transaction, the expense of transferring a privilege from such persons to others. He pressed this point with more zeal, he said, because the towns, if they found their speculations become expensive, would cease to vex and harass the defendants, and other mill owners with them. He used the term speculations, he said, because there had not been a fish of the species which these proceedings were intended to protect for more than half a century, except such as had been carried in tubs, &c.
    
      
      
        Lewis, qui tam, vs. Leeds & Al., Suffolk, Aug T. 1794.
    
   The action stood continued nisi, and at the March term in Suffolk, the opinion of the Court was delivered by

Parsons, C. J.

The plaintiffs found their claim on the resolution of the legislature recited in the declaration; on the alteration of the former sluice-way ordered by the committee therein appoint ed ; on the refusal of the defendants to make that alteration seasonably ; on the authority given by Mr. Loud, as a sub-committee, to the plaintiffs, to make that alteration; and on the plaintiffs’ making :"t pursuant to that authority.

The defendants object to the claim of reimbursement of the money paid to defray the expenses of the committee; and we are satisfied this objection is well founded. The resolve is silent on this subject, and the only charge which it imposes on the owners of the dam is three fourths of the expenses incurred in altering the sluice-way.

The defendants also object to the claim for the expenses of making the alterations in the sluice-way, arguing that the legislature had no authority to pass the said resolve; because their dam is an ancient dam, derived from a grant by the town of Dorchester in 1633, held by them and by those whose estate they have therein, without any sluice-way for *the passage of fish from [*527 ] that time to the year 1789, when the legislature first directed that a passage should be opened for fish ;—because, in the year 1633, a wear for the taking of fish was granted as appurtenant to their mi 1, by which the grantee, his heirs and assigns, had a several fishery between the dam and the sea, and that this grant of a wear was, in the same year, confirmed by the colony legislature, so that the public have no right for the passage of fish above or through their wear;—because, if the public have this right, it should bo exercised by the intervention of a jury to describe the site and dimensions of the sluice-way, and not by a committee of the General Court, who may, through error or mistake, order the whole dam to be prostrated, and thereby destroy or render useless the estate the defendants have in the mill;—because, if the public have not this right, but claim to take it for the public use, the commonwealth is bound by the constitution to make a reasonable compensation to the owners, and not charge them with the expense of making the sluice-way.

The grants on which the defendants rely are made part of the case. The grant by Dorchester, relating to the dam, is in these words: It is generally agreed that Mr. Israel Stoughton shall build a water-mill if he see cause.” Then follows a grant to him of a wear adjoining to his mill; and no person is to cross the river with a net or otherwise to the prejudice of the said wear; but Stoughton is to sell the alewives at five shillings per thousand, and the other fish at reasonable rates. The colony legislature in 1634 confirmed the grant of the wear to Stoughton and his heirs, he agreeing to build and maintain a horse-bridge over the river.

The wear thus granted and confirmed amounted to the franchise of a several fishery at that place, but it extended to no other place on the river above it. And this franchise cannot be construed to include a right of excluding all fish from passing above the wear. The value of this fishery depends on the shoals of fish that enter the river to pass to the ponds above to cast their spawn ; and if none were allowed to pass, the fishery would be of little value, and the public, to whom Stoughton was obliged to sell, would lose their supply, which was one of the considerations of granting the franchise.

* f 528] * We are therefore satisfied that this franchise, if it were not lost, would be no objection to the right of the public to have a convenient passage-way for the fish to ascend the river to the ponds. In examining the grants, this franchise is not appurtenant to the mill, but is a several independent interest, granted on conditions. And the case does not state that it was ever exercised by Stoughton, or by those who claim under him; and, at this time, we must presume that it is lost and gone by nonuser.

The ancient grants by towns .are very loosely expressed, and when a fee was intended, words of inheritance are seldom used. When a long possession by the grantee, his heirs or assigns, has followed, the original grant has uniformly been considered as a grant of a fee. In this case, we are therefore of opinion that Stoughton took a fee m the mill privilege, as it is usually called in this state, And having a privilege to build a mill, he necessarily had a right to erect a dam, to raise water sufficient to drive his mill.

But the right to build a dam for the use of a mill was under several implied limitations. One was to protect private rights, by compelling him to make compensation to the owners of land above, for, and damages occasioned by, overflowing their lands: another was to protect the rights of the public to the fishery; so that the dam must be so constructed that the fish should not be interrupted in their passage up the river to cast their spawn. Therefore every owner of a water-mill or dam holds it on the condition, or perhaps under the limitation, that a sufficient and reasonable passage-way shall be allowed for the fish. This limitation, being for the benefit of the public, is not extinguished by any inattention or neglect, in compelling the owner to comply with it. For no loches can be imputed to the government, and against it no time runs so as to bar its rights.

If the government should, in its grant of a mill privilege, expressly or by necessary implication, waive this limitation, it would be bound. But it would be an unreasonable construction of the grant by Dorchester, to admit that by it all the people were deprived of a free fishery in the river above the dam, to which, until the grant, they were unquestionably entitled.

* The public, therefore, having a right to the benefits of [* 529 ] this limitation, as to the mill and dam of the defendants, there must be some remedy by which this public benefit may be secured. • But this remedy, say the defendants, cannot be obtained by any authority of the committee of the General Court, but should be sought for through the intervention of a jury.

The legislature may make all laws not repugnant to the constitution ; and we do not know that this law is repugnant to it. And the usage of the General Court to appoint committees to locate and describe the site and dimensions of passage-ways for fish is ancient, and has been long continued. But if a committee, thus appointed, should locate and describe a passage-way for fish unnecessary and unreasonable, by which the property of the owner of the mill was injured without any public benefit, we do not admit that he would be without remedy. The owner holds his privilege subject to the limitation, that a reasonable and sufficient passageway should be allowed for the fish. Beyond this, the public has no interest, and private right is invaded. Any prostration of the dam by a committee, not within this limitation, would be an injury to the owner, for which he might appeal to his country, and have a remedy by the verdict of a jury.

Another objection made was, that if this resolution was constitu tional, the legislature might authorize strangers to enter without right on the freehold or lawful possession of another.

This objection, supposing that strangers enter without right, is begging the question. For if the owner of the dam hold it under the limitation mentioned, that limitation must- extend to give a right to the government to enter and remove obstructions, which, if not removed, would defeat the limitation.

In this action, it does not appear that, at the trial, the defendants made any objection to the necessity or reasonableness of the alteration of the sluice-way ordered by the committee; on this ground, therefore, he has now no right to complain.

It has been further argued that, if the resolve is constitutional, yet the plaintiffs cannot maintain this action, for several reasons. The resolve authorizes the committee to order alteraf * 530 ] tians *in old passage-ways, or to direct new passageways to be made. Whoever, therefore, say the defendants, make these alterations, are agents of the committee, and the committee, who are answerable to their agents, must bring the action.

If this objection were to prevail, no committee would ever undertake the trust. And as their powers are to locate and describe the requisite alterations, but not to make them, — if this objection should not prevail, it is argued that, after the committee have made the order, and given notice to the owner of the dam, they have executed all their powers; and it is the duty of the owner of the dam to make the alterations; and if he disobey the order, he may be punished by indictment. There might be some weight in this objection, if the authority of the committee were confined to the issue of orders; but they are expressly authorized to cause new fish-ways to be opened. The work may therefore be done under their direction, if the owner refuses to remove the obstruction which ho has placed or continued.

But it is denied that the committee could authorize three towns jointly to make this alteration, so as to give them a joint action.

We think there is some weight in this objection, as it is not easy to conceive how a joint authority could lawfully be vested in three distinct independent corporations, who can act only by a major vote in distinct corporate meetings, by the committee under this general authority given them. But we do not think it necessary to decide on this point, because we are satisfied that the remaining objection is fatal against the action.

This objection is, that it was not competent for Mr. Loud, as a sub-committee, to execute any of the powers of the committee, and therefore he could not authorize the plaintiffs or any other persons to make the alteration, so far as to give them a right of action to recover a compensation.

The authority given to the committee is, by the terms of the resolve, to be exercised by them, or the major part of them. The^ exercise of this authority is personal, and cannot be delegated. If it could be delegated, it might be delegated to any * other man, as well as to Mr. Loud, one of the commit- [*531 ] tee. If the committee, or a major part of them, had exercised the powers given them, it might have been thought by them reasonable to give the defendants time until the next spring to make the alterations; or they might have employed other persons than the plaintiffs to make them. However this might have been,it is extremely clear that the powers given to the committee must be exercised by all, or by the greater part, and that they could not be delegated to Mr. Loud, or to any other person.

For this reason, the verdict must be set aside, and a general verdict be entered for the defendants, 
      
      
        [Kupfer vs. Augusta, 12 Mass. Rep. 185. — Tippets vs. Walker, post, 595. — Emerson vs. Prov. Hat Manuf. Co., 12 Mass. Rep. 237. — Ed.]
     