11 Met. 325. notice thereon. therefrom, such improvements may be effected under the direction of 22 Pick. 422. 1859, 196. 11 Met. 325. 1876-225-Must may be appoint of; SECT. 3. If upon hearing the parties it appears that the improve- Commissioners ments proposed will be for the general advantage of the proprietors, ed. the court may appoint three, five, or seven suitable persons, as commis- Power and duty sioners, who shall be sworn to the faithful discharge of their duties; R.'s. 115, §§ 3, 4. shall view the premises, notify parties concerned, hear them as to the best manner of making the improvements, and prescribe the measures to be adopted for that purpose. may cause dams and dikes to be erected, R. S. 115, § 5. persons to per SECT. 4. They shall, according to the tenor of the petition and the order of court, cause dams or dikes to be erected on the premises at such places and in such manner as they shall direct; may order the land to be flowed thereby for such periods of each year as they shall deem most beneficial; and cause ditches to be opened on the premises, and obstructions in any rivers or streams leading therefrom to be removed; and they shall meet from time to time as may be necessary to cause the work to be completed according to their directions. SECT. 5. They may employ suitable persons to erect the dams or may employ dikes, or perform the other work, under their direction, for such reason- form the work; able wages as they may agree upon; unless the proprietors themselves R. S. 115, § 6. do the same in such time and manner as the commissioners shall direct. SECT. 6. They shall apportion the whole charge and expense of the improvements, and of executing the commission, among the proprietors proprietors; of the lands, having regard to the quantity, quality, and situation, of R. §. 115, § 7. each person's part thereof, and to the benefit that he will derive from the improvements; and shall assess the same upon the proprietors. SECT. 7. They may appoint a collector of the moneys assessed, and shall give him a warrant to collect, pay over, and account for, the same, R. S. 115. § 8. to such person as they may appoint. The collector shall have the same power and proceed in like manner in collecting the assessments, as provided for collecting town taxes. may apportion expense among may appoint a collector thereof. 5 Met. 360. lector for with 1852, 312. SECT. 8. If the collector neglects for twenty days after being thereto Penalty on colrequired by the commissioners to account for and pay over the money holding money. he has collected, he shall be liable to pay to the commissioners the whole RS. 115, $9. amount committed to him for collection, to be recovered by them in an action of contract; and the money so recovered, after deducting the expenses of recovery, shall be applied and accounted for by the commissioners as if it had been collected and paid over by the collector pursuant to his warrant. SECT. 9. The collector shall be allowed such compensation for his services as may be agreed upon between him and the commissioners; and the commissioners shall be allowed such compensation for their services as may be ordered by the court. Compensation of commissioners missioners. SECT. 10. The commissioners shall, as soon as may be after the com- Return by completion of the business, make a return to the court of their doings under R. S. 115, § 11. the commission, including an account of all money assessed and col- 7 Pick. 207. lected by their order, and of the disbursement thereof. of expense. SECT. 11. When it appears to the commissioners that part of the Apportionment land is held by a tenant for life or years, they shall determine how much R. s. 115, § 12. of the sum apportioned on that part of the premises shall be paid by such tenant, and how much by the landlord or reversioner; and shall assess the same accordingly, unless the parties concerned agree on an appor Provision in case of mortgage. tionment; and every such tenant, landlord, and reversioner, shall be considered a proprietor. SECT. 12. If any part of the land is mortgaged, the mortgagor or R. S. 115, 18. mortgagee, in possession, shall be considered as the proprietor; and all sums paid by the mortgagee by order of the commissioners, shall be allowed to him as sums paid by him for improvements are by law to be Commissioners may make or open dams on R. S. 115, § 14. 11 Met. 821. allowed. SECT. 13. When the commissioners find it necessary or expedient to reduce or raise the waters for the purpose of obtaining a view of the land of other per- premises, or for the more convenient or expeditious removal of obstructions, they may open the flood-gates of any mill, or make other needful passages through or around the dam thereof, or erect a temporary dam, on the land of any person not a party to the proceedings; and may maintain such dam or passages for the water as long as may be necessary for the purposes aforesaid. Damages, how ascertained and paid. R. S. 115, § 15. 11 Met. 325. Persons aggrieved may appeal. R. S 115, § 16. 5 Met. 363. Proceedings thereon. R. S. 115, § 17. 5 Met. 363. Notice to persons who are not parties. R. S. 115, § 18. Appeal. Exceptions. SECT. 14. All damages thus occasioned shall be estimated and determined by the commissioners, unless agreed on between them and the parties concerned; and shall be paid by the commissioners out of the money to be assessed and collected by them as before provided. SECT. 15. If a person, whether a party to the proceedings or otherwise interested therein or affected thereby, is aggrieved by any doings of the commissioners, he may appeal to the court at any time after their appointment and before the end of the term next following that at which the return is made. SECT. 16. The court upon such appeal may affirm, reverse, or alter, any adjudication or order of the commissioners, and make such order therein as law and justice require. All questions of fact arising upon the hearing of the appeal, shall on motion of either party be tried by a jury in such manner as the court shall direct. SECT. 17. The commissioners before proceeding to open flood-gates or make other passages for water through or around any dam, or to erect a dam on the land of any person not a party to the proceedings, shall give him seasonable notice in writing of their intention, to enable him to appear before them and object thereto; and if he appeals from their determination, and gives notice in writing of his appeal to the commissioners or any of them, they shall suspend all proceedings upon his land until the appeal is determined: provided, that the appeal be entered at the court held next after the expiration of seven days from the time of claiming the same. SECT. 18. An appeal shall be allowed from any order or judgment of the court founded on matter of law apparent on the record, in any 1840, 87, $$ 4,7. proceedings under this chapter; and any person aggrieved by any R. S. 15, § 19. 1859, 196 5 Met. 363. opinion, direction, or judgment, of the court, in any matter of law, may allege exceptions thereto, which shall be reduced to writing and allowed and signed by the presiding judge, and thereupon the case shall be removed into the supreme judicial court as provided in chapters one hundred and fourteen and one hundred and fifteen. CONSTRUCTION OF ROADS, &c., TO SWAMPS, &c. SECT. 19. Any town, city, person, company, or body corporate, having the ownership of low lands, lakes, swamps, quarries, mines, or mineral deposits, that on account of adjacent lands belonging to other persons or occupied as a highway, cannot be approached, worked, drained, or used, in the ordinary manner, without crossing such lands or highway, may be authorized to establish roads, drains, ditches, tunnels, and railway, to such places, in the manner hereinafter provided. SECT. 20. The party desiring to make such improvements shall file a petition therefor with the county commissioners within whose juris diction the premises are situated, setting forth the names of the persons to commissioners. interested, if known to the petitioner, and also, in detail, the nature of 1855, 104, § 2. the proposed improvement and the situation of the adjoining lands; which petition shall be accompanied with a bond, satisfactory to said commissioners, for the payment of expenses incurred in the prosecution of the application. provements, notice of; 1855, 104, § 8. SECT. 21. The commissioners at their first meeting after the filing of Petition for imthe petition and bond, shall give at least three weeks' public notice of the time and place of meeting to consider the petition, in some newspaper printed in the county; and if there is no such paper, in a newspaper printed in an adjacent county; they shall further give notice to the mayor of any city and the clerk of any town in which the premises are situated. proceedings on. SECT. 22. They shall meet at the time and place appointed, and after examination, inspection, and the hearing of evidence, shall determine 1855, 104, § 4. whether the improvement prayed for is necessary, and if so, shall proceed to lay out and establish the same in such manner as shall do as little injury as practicable; and shall assess the amount of damages which in their opinion the proprietor of the adjacent lands will sustain. They shall apportion the damages equitably among all parties to be benefited, having regard to the benefits each will receive; and such award shall be deemed conclusive upon each of the parties charged with such payment, unless an appeal is taken within the period of one year. 1855, 104, § 6. SECT. 23. Any party aggrieved by the award may appeal therefrom, Appeal. and thereupon like proceedings shall be had as are provided in chapter forty-three, for persons aggrieved in the laying out of highways. SECT. 24. When it is necessary to repair any improvement thus con- Repairs of imstructed, a majority of the persons benefited by it may cause such re- 1855, 104, § 6. pairs to be made, and compel contributions from each person benefited, on the basis of the award. provements. made to select men, &c.; SECT. 25. When the premises mentioned in section nineteen are Petition may be situated entirely in one town or city, the petition may be made to the selectmen or mayor and aldermen thereof, who shall proceed thereon 1857, 292, § 1. in all respects as above provided for county commissioners upon such petitions, except that they need not give notice to their town or city. SECT 26. The petition under the preceding section shall be filed in the office of the town or city clerk before proceedings are had thereon; and together with the order or award thereon shall be recorded in said 1857, 292, § 3. office within two months after the same is made. to be filed and recorded with decree. men, &e SECT. 27. The selectmen or mayor and aldermen shall each receive Fees of selectfor services upon such petitions two dollars a day, and the clerk shall receive for recording petitions and orders the same fees as for mortgages of personal property. Appeal to county commissioners. SECT. 28. A party aggrieved by any order, award, or refusal of the selectmen or mayor and aldermen herein, may complain to the county 1857, 292, § 2. commissioners at any meeting held within one year thereafter; and the commissioners may thereupon proceed in all respects as though the petition were originally made to them. 95 Measure of башаро 113 m. 88 SECTION CHAPTER 149. OF THE SUPPORT AND REGULATION OF MILLS. ERECTION AND REGULATION OF MILLS. 1. Mills and dams on streams not ravigable. 2. Not allowed to injury of existing mill or mill- 3. Height of dam. 4. Damages recovered on complaint. 5. Substance of complaint. 6. Notice to mill owner; 7. by whom served. 8. Answer of respondent. 9. Further pleadings and trial. 10. Judgment for respondent. Costs; 11. for complainant. Jury. 12. Appeal and proceedings. 13. Warrant for jury. Jurors, how drawn, &c. 15. Trial may be in court if parties so agree, 16. Damages, how estimated. 17. Verdict for respondent; 18. for complainant. 19. Jury to establish height of dam, &c.; 20. to assess annual damages, and also a sum in 21. Complainant may take sum in gross. 22. If not paid, respondent to have no benefit. 28. Right of redemption. 29. Existing mills and dams not affected. 31. Action at common law. 61. Case of a mortgagee in possession; 62. tenant in tail. 63. How suits between proprietors brought. 64. Chapter not to affect agreements, &c. DUTIES AND COMPENSATION OF MILLERS. 65. Millers to keep scales, &c., and weigh grain, if required, under penalty. 66. What toll allowed. 18735144 Mills and dams on streams not ERECTION AND REGULATION OF MILLS. SECTION 1. Any person may erect and maintain a water mill, and a dam to raise water for working it, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed. Not allowed to mill or mill-sites. R. S. 116, § 2. SECT. 2. No such dam shall be erected to the injury of any mill lawfully injury of existing existing, either above or below it, on the same stream, nor to the injury of any mill-site on the same stream, on which a mill or mill-dam has been lawfully erected and used, unless the right to maintain a mill on such last-mentioned site has been lost or defeated by abandonment or otherwise; nor shall any mill-dam be hereafter erected or raised to the injury of any such mill-site which has been occupied as such by the owner thereof: provided, that such owner within a reasonable time after 17 Mass. 289. 8 Cush. 117. commencing such occupation completes and puts in operation a mill for the working of which the water of such stream shall be applied; nor shall any mill or dam be placed on the land of any person, without such grant, conveyance, or authority, from the owner, as would be necessary by the common law if no provision relating to mills had been made by statute. R. S. 116, § 3. 213 Height of dam. 4 Cush. 549. recovered. SECT. 3. The height to which the water may be raised, and the length of time, or period, for which it may be kept up in each year, shall be liable to be restricted and regulated by the verdict of a jury. 7 Gray, 296. SECT. 4. A person whose land is overflowed or otherwise injured by Damages, how such dam, may obtain compensation therefor upon his complaint before RS.116, § 4. the superior court for the county where the land or any part thereof 1840, 87, $2. lies provided, that no compensation shall be awarded for damage sus- 2 Met. 507. tained more than three years before the institution of the complaint. 11 Met. 570. 2 Cush. 341. 4 Gray, 581. 13 Gray, 148. 12 Allen, 89. 12 Met. 182, 188. 4 Cush. 152, 161. 6 Cush. 170, 303. 7 Gray, 296. 10 Allen, 420. 102 Mass. 458. 5 Cush. 537. SECT. 5. The complaint shall contain such description of the land alleged to be flowed or injured, and such statement of the damage, that the record of the case will show with sufficient certainty the matter heard and determined therein. 22 Pick. 312/10298 Met. 359. 1/3 m. 88 4 Met. 426. Substance of complaint. 9 Pick. 62. owner: 6 Cush. 171. SECT. 6. The complaint may be filed in the court in term time, or in Notice to mill the clerk's office in vacation, and in either case notice thereof shall be Rs. 116, §§ 6, given to the owner or occupant of the mill, by delivering to him, or 7 leaving at his dwelling house, an attested copy of the complaint; or if he is not found within the state and has no dwelling house therein, by leaving such copy at the mill in question fourteen days at least before the complaint is to be heard; or the complainant may fourteen days at least before the sitting of the court to which his complaint is brought, cause the owner or occupant of such mill or dam to be served with an attested copy of the complaint, by delivering or leaving such copy in like manner as when the complaint is filed as aforesaid. SECT. 7. The notice shall be served by any officer authorized to serve any other civil process between the same parties. SECT. 8. The respondent may answer in bar, that the complainant has no estate or interest in the land alleged to be flowed or injured, or that the respondent has a right to maintain his dam for an agreed price, or without any compensation, or any other matter which may show that the complainant cannot maintain the suit; but he shall not answer that the land described is not injured by the dam. 12 Cush. 259. 4 Gray, 581. SECT. 9. If any plea or answer is filed by the respondent, the replication and other pleadings, and the trial of the issue, whether of law or of fact, shall be conducted in like manner as in actions at the common law. SECT. 10. If an issue is decided in favor of the respondent, or if the Judgment for complainant becomes nonsuit or discontinues, the respondent shall be respondent. entitled to his costs, to be taxed as in civil actions. Costs: R. S. 116, § 10. for complain R. S. 116, § 11. SECT. 11. If the owner or occupant of the mill or dam after due notice is defaulted, or offers no legal objection, or an issue is decided in ant. Jury favor of the complainant, the court shall issue a warrant for a jury to See § 15. hear and determine the matter of the complaint. ceedings 1840, 87. §§ 4,5. 6 Mass. 398. SECT. 12. Either party may appeal as in other civil actions, but if Appeal and prothe judgment of the supreme judicial court is in favor of the complain- Rs. 116, § 12. ant, the cause shall be remitted and the court shall proceed therein in like manner as if the judgment had been rendered in that court. SECT. 13. The warrant shall be directed and served, and the jurors 13 Allen, 274. shall be drawn, summoned, and returned, in the manner provided in jury. Jurors, chapter forty-three with respect to a jury returned on the complaint of how drawn, &c. a person aggrieved by the laying out of a highway, and the jurors shall 2 Cush. 346. be required to attend under a like penalty. Warrant for R. S. 116. § 13. 4 Gray, 581. |