Farm drainage / The Principles, Processes, and Effects of Draining Land with Stones, Wood, Plows, and Open Ditches, and Especially with Tiles

by Henry F. French

In the valuable treatise of Dr. Warder, of Cincinnati, recently published in New York, upon Hedges and Evergreens, an abstract is given of the statutes of most of our States, upon the subject of fences, and we know of no other book, in which so good an idea of the legislation on this subject, can be so readily obtained.

By the statutes of Massachusetts, any person may erect and maintain a water-mill, and dam to raise water for working it, upon and across any stream that is not navigable, provided he does not interfere with existing mills. Any person whose land is overflowed, may, on complaint, have a trial and a verdict of a jury; which may fix the height of the dam, decide whether it shall be left open any part of the year, and fix compensation, either annual or in gross, for the injury. All other remedies for such flowage are taken away, and thus the land of the owner may be converted into a mill-pond against his consent.

We find nothing in the Massachusetts statutes which gives to land-owners, desirous of improving their wet lands, any power to interfere in any way with the rights of mill-owners, for the drainage of lands. The statutes of the Commonwealth, however, make liberal and stringent provisions, for compelling unwilling owners to contribute to the drainage of wet lands.

For the convenience of those who may be desirous of procuring legislation on this subject, we will give a brief abstract of the leading statute of Massachusetts regulating this matter. It may be found in Chapter 115 of the Revised Statutes, of 1836. The first Section explains the general object.

When any meadow, swamp, marsh, beach, or other low land, shall be held by several proprietors, and it shall be necessary or useful to drain or flow the same, or to remove obstructions in rivers or streams leading therefrom, such improvements may be effected, under the direction of 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 to the proprietors who do not join in the petition, and for a hearing. The court may then appoint three, five, or seven commissioners to cause the improvements to be effected. The commissioners are authorized to cause dams or dikes to be erected 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 premises, and obstructions in any rivers or streams leading therefrom to be removed.

Provision is made for assessment of the expenses of the improvements, upon all the proprietors, according to the benefit each will derive from it, and for the collection of the amount assessed.

"When the commissioners shall find it necessary or expedient to reduce or raise the waters, for the purpose of obtaining a view of the premises, or for the more convenient or expeditious removal of obstructions therein, they may open the flood-gates of any mill, or make other needful passages through or round the dam thereof or erect a temporary dam on the land of any person, who is not a party to the proceedings, and 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 persons who are not parties, and for compensation to them for injuries occasioned by the interference, 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 application to "meadow, swamp, marsh, beach, or other low land." The word meadow, in New England, is used in its original sense of flat and wet land. Secondly, the statute seems to give no authority to open permanent ditches on the land of others than the owners of such low land, although it provides for temporary passages for the purposes of "obtaining a view of the premises, or for the more convenient or expeditious removal of obstructions therein"—the word "therein" referring to the "premises" under improvement, so that there is no provision for outfalls, under this statute, except through natural streams.