The September 2010 issue of Towpath Topics is in preparation.

April 2010 issue of Towpath Topics

February 2010 issue of Towpath Topics

October 2009 Towpath Topics

Important announcement

For the past nine years a group of dedicated volunteers has operated the Middlesex Canal Museum and Visitor Center at the Faulkner Mill in North Billerica. At first the generosity of the owner allowed us to stay there. He now feels it necessary to charge rent. We do have good facilities for rental in a charming Museum. Should you plan a function, we hope that you will consider us. The reasonable charge of $200 covers the room and a committee member who will be present throughout to assist you. For more information phone 978-670-2740, leave a message and someone will return your call.

Calendar of Middlesex Canal Association Events and Related Events

First Wednesday - MCA Board of Directors' Meetings - The Board meets at the Museum, from 3:30 to 5:30pm, the first Wednesday of every month. Members are welcome to attend.

Sat, Oct 2, 2010 - 8th Annual Middlesex Canal Historic Ride from Charlestown to Lowell. Details to follow.

Other Canal-Related Events

September 19-24, 2010: World Canals Conference, Rochester, NY. Contact: www.worldcanalsconference.org. Post conference tours Friday 24 September check www.wccrochester.org.

October 1-16, 2010: Study tour of south German waterways. Contact Tom Grasso, www.canalsnys.org.

October 8-10, 2010: Pennsylvania Canal Society fall trip.

October 22-24 - "River Boats, Pirates and Caves." Headquartered in Evansville, IN. Bus tour of southeastern Illinois, Cave In Rock, Garden of the Gods, Ohio River locks, Paducah, Kentucky flood wall murals (possibly Quilters Hall of Fame and the Civil War Museum) on Saturday. Friday tour of LST in Evansville, Sunday Wabash & Erie Canal in Warrick County Indiana. Carolyn Schmidt, 260-432-0279; <indcanal at aol dot com>.

Heritage Corridor Map Book (4.6MB, 41 page PDF)
[Note: Use landscape format for printing pages]

Volunteers and docents are welcome at the museum! If interested in helping out, contact Betty Bigwood. [pictured: Gerry & Betty Bigwood, Traci Jensen, and Tom Dahill]

The 7th Annual Middlesex Canal Historic Ride took place on Sat, Oct 10, 2009 with approximately a dozen cyclists. Like the Spring Walk and the Fall Walk, the Bike Ride has now become an annual tradition.   Cue sheets for the 2009 ride (PDF)

Middlesex Canal Prism
75 ft. Buffer

THE GREAT BILLERICA DAM CONTROVERSY
by Arthur L. Eno, Jr.
[This article appeared in the April 1982 issue of Towpath Topics.]

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.

From the April 2005 issue of Towpath Topics:
Middlesex Canal Facts

From the archives:

A COMPARISON OF THE BLACKSTONE AND MIDDLESEX CANALS
by B. H. DICKSON
[This article originally appeared in the April 1968 issue of Towpath Topics (Vol. 6, No. 1).]

AN EXACTING STUDY OF THE COMPLEXITIES, OBSTACLES, 
SUCCESSES AND FAILURES ENCOUNTERED IN THE 
BUILDING AND OPERATION OF THE MIDDLESEX CANAL
by ALEC INGRAHAM
[This article was originally published in two parts in the April 1969 and September 1969 issues of Towpath Topics. It was prepared by the author as a course paper at Nasson College, and was revised by the author for publication (1969).]

Sun, Oct 18, 2009 - MCA-AMC Fall Walk. Middlesex Canal, N. Billerica. Level 5-mi. walk along historic canal N to Chelmsford, 1:30-4pm. From Rte. 95/128, take Rte. 3 N to exit 28, Treble Cove Rd., L towards N. Billerica 1.7 mi., L on Rte. 3A/129 0.7 mi., R on Lowell St. 0.7 mi. becomes Faulkner St., cross river at Faulkner Mills, R into pkg. lot opp. Middlesex Canal Museum (opens at noon). No reg. Joint w/Middlesex Canal Assoc. Info: www.middlesexcanal.org or Roger Hagopian (781-861-7868). L Robert Winters (617-661-9230; robert@middlesexcanal.org).

Oct 18, 2009 update - In spite of poor weather, MCA Board member and videomeister Roger Hagopian (right) led eight intrepid souls along the canal route in the rain and snow. Speaking of intrepid souls, check out the footwear of the fellow next to Roger!

Pleasure Barge - watercolor by Thomas Dahill
(story in a recent issue of Towpath Topics)

Plaque at Sandy Beach on the Upper Mystic Lake

1890 photo of the remains of the Shawsheen Aqueduct of the Middlesex Canal (from a glass slide)

The Middlesex Canal Association Annual Meeting on May 4, 2003 featured guest speaker J.R. Greene, historian and author of many books on the history of the Quabbin Reservoir and the towns that were eradicated to create the reservoir. If you are interested in the books of J.R. Greene, a listing and contact information is provided here.
Books by J.R. Greene

The first issue of the Middlesex Canal Association newsletter was published in October 1963. Originally named "Canal News", the first issue featured a contest to name the newsletter. A year later, the newsletter was renamed "Towpath Topics".
 

Calendar of meetings of the
Middlesex Canal Association
and Museum volunteering

Officers and Directors of the
Middlesex Canal Association

By-Laws of the
Middlesex Canal Association

Middlesex Canal Corporation Records
Mogan Center Archives
at UMass Lowell