Towpath Topics masthead

Towpath Topics title
Middlesex Canal Association    P.O. Box 333    Billerica, Massachusetts 01821
Volume 32, No.2    March, 1994


SPRING CANAL WALK IN WILMINGTON

SATURDAY, APRIL 23, 1994 at 2 P.M.
(Rain date: Sunday, April 24)
Jointly sponsored by MCA and AMC

Meet at 2 p.m. in Wilmington at the Town Forest parking lot on the left side (going north) of Route 38, 2.4 miles north of Route 128 and directly opposite the Continental Cablevision building.

Bring your family and friends for this walk along delightful sections of the old Middlesex Canal. After seeing the "oxbow" and grooves worn in the rock by countless tow ropes, we will cross Maple Meadow Brook at the remains of the old aqueduct and go north along the portion of the canal given to the Middlesex Canal Association in 1983 by the late Stanley Webber and his daughter Julia Fielding. We will cross Butters Row and continue on to Patches Pond where we will turn around and retrace our steps to the Town Forest. It will be a leisurely walk of about 2 miles round trip, with ample time for occasional stops for questions and remarks about the history of the Canal.

For those who still have the energy and wish to see another lovely section of canal in Wilmington, we will drive to Wedgewood Drive and take a short walk south to Lubber Brook and the site of the Sinking Meadow Aqueduct. If conditions at the Brook are favorable, we will cross it and continue on along the canal in the Fred F. Cain Park to the Route 129 bridge. There we will turn around and return to the cars parked on Wedgewood Drive.

Walk leaders are Bill Gerber (508-251-4971) and Betty Bigwood (508-657-7870).


ANNUAL MEETING

SUNDAY, MAY 8, 1993
at the Wilmington Arts Center
219 Middlesex Ave. (Rte. 62), Wilmington

Speaker: Nolan Jones, Proprietor of the MCA
Topic: The Canal du Midi

The Canal du Midi provides a shortcut across southern France between the Mediterranean Sea and the Atlantic Ocean, greatly reducing the long sea journey around the Iberian peninsula. The Canal du Midi was built in the 1680s, more than 100 years before our own Middlesex Canal. Early design work was done by Leonardo Da Vinci in the 1500s, including oval shaped lock chambers, which are stronger than regular chambers. Commercial traffic continued until about 1983.

Nolan and Joan Jones joined the Canal Society of New Jersey trip on the Canal du Midi in June 1993 for a delightful two week journey on the trip from the medieval city of Carcassone to the beach city of Agde. Highlights will include descriptions of the headwaters, a water slope, a hat museum and fine dining.

The talk will be preceded by a short annual business meeting of the MCA. The meeting and talk are open to the public. Please bring your friends and plan to stay after the program for refreshments and socializing.

DIRECTIONS: The Wilmington Arts Center is on Rte. 62, one mile east of the junction of Rtes. 38 & 62. It is directly across from the Congregational Church, a large white building with tall spire.
From Rte. 128, take exit 35. Go north on Rte. 38 towards Wilmington for 3.6 mi. to Rte. 62. Turn right and go 1 mile. The Arts Center is on your right.
From Rte. 93, take exit 40 to Rte. 62. Go 1.3 mi. west on Rte. 62 to the Arts Center, which is on your left.

DELAWARE & HUDSON CANAL FIELD TRIP

A joint spring 1994 field trip of the New York, New Jersey, and Pennsylvania Canal Societies will be held on the Kingston, NY, end of the Delaware & Hudson Canal on Friday, April 29 through Sunday, May 1. Those who are not members of any of those three societies may obtain further information from Linda House, 214 N. Bridge Street, Somerville, NJ 08876.


PRESIDENT'S MESSAGE

The Annual Meeting in May marks the completion of my fourth and final year as President. I hope to remain active as a Director, but it is time for a new President full of fresh ideas, enthusiasm, and energy.

I believe these past four years have been fruitful with respect to fulfilling goals of the Association. We have continued, through lectures and walks and the related newspaper publicity, to acquaint the public with our historic canal and its importance to the early history of the United States. Our Bicentennial reenactment last October was particularly effective in giving the canal and our Association publicity. Sale of Bicentennial Posters, books, maps, and soon canal note paper (see description elsewhere in this issue) contributed to sparking public interest. Thanks to editor Martha Hazen and contributors, Towpath Topics continues to include excellent historical articles of interest to our membership and to canal buffs at large.

Preserving extant remains of the canal is also a goal of the Association. Over the past four years we have continued to monitor activities and attend public hearings on issues that might adversely affect canal remains.

In a few months we should be ready to publish two books. Director David Barber has been using computer scanning techniques to copy an unpublished typewritten manuscript on the Middlesex Canal written by Lewis M. Lawrence in 1942. I am nearing completion of a map guide book showing the route of the canal in relation to existing streets in the nine towns through which it passed.

I have been blessed with an excellent and supportive Board of Directors. Most, if not all, of these capable and experienced people will continue. So I look forward to a banner year under the leadership of a fresh new President, with the backing of our dedicated Directors and Officers.

Burt VerPlanck
President

DUES INCREASE

In spite of general inflation, our Middlesex Canal Association dues have remained unchanged for over 10 years. The cost of postage, producing Towpath Topics, copying, and other expenses have increased to the point that our Board of Directors recommends increasing the annual dues for Proprietor from the present $10 to $14, and for Member from $5 to $7. This increase will be voted on by the Proprietors present at the Annual Meeting in Wilmington on May 8 at 2 p.m. Further details concerning the meeting and the program may be found on p. 2.


CELEBRATION OF THE 200TH ANNIVERSARY OF THE MIDDLESEX CANAL
contributed by Howard Winkler

On October 17th, the one act play Launching the Middlesex Canal: An Historical Reenactment at Its Bicentennial written and directed by David Dettinger, Vice President of the MCA was presented at the Medford Senior Citizens' Center. The cast included in order of their appearance:

Mrs. Hezekiah Blanchard      as played by     Betty Bigwood
Hon. James Sullivan Nolan Jones
Col. Loammi Baldwin Thomas Raphael
Hon. John Brooks David McNamara
James Winthrop Richard Ondreicka
Capt. Ebenezer Hall John Cox
Samuel Swan, Jr. David Dettinger
Boatman Paul Wiggen

Details of the meeting that took place 200 years ago at the Blanchard Tavern are no longer extant. We do know with certainty that a contractual agreement was made. With this knowledge and much research and imagination Dave created this informative and entertaining play.

We can record with certainty that on the Sunday of the performance the temperature was mild, and there was a mist in the air. The audience was aided in crossing Riverside Ave. from the parking lot by a Medford police officer. The performance took place in a most attractive assembly room with theater-in-the-round seating. The actors, who were costumed in period clothing, performed on a raised stage appointed with furniture of the period.

At the end of the performance the Boatman led the audience in "Haulin' Down to Boston On The Middlesex Canal", words and music by David Dettinger. It would be easy to believe that Dave found this canal song buried in our archives. [Note: a copy of Dave's superb song is found as a centerfold in this issue.]

Baldwin apples were served to the actors on stage as well as to the audience as part of the post-play collation. Included in the refreshments was a magnificent cake model of the canal baked by Bettina Harrison. The canal was very edible.

For those members who were not able to attend the performance, it will be possible to watch it on video tape. It has already been shown on cable TV in several local communities. In 2093 at the time of the 300th anniversary celebration of the launching of our Canal, the audience who view the 1993 celebration will believe that they are seeing the 1793 event!

Below: The cast of the Bicentennial reenactment. Left to right: Betty Bigwood, Dave Dettinger, Dave McNamara, Nolan Jones, Tom Raphael, Richard Ondreicka, John Cox, Paul Wiggin.

Launching the Middlesex Canal


MIDDLESEX CANAL NOTE PAPER

Packets of Middlesex Canal note paper are being produced and will be ready to go on sale at the Spring Meeting on May 8. The packets include 9 envelopes with note paper, each with a different historic Middlesex Canal scene. The pictures include five prints made in the 1880s by A. E. Herrick; these were used previously for note paper 15 or 20 years ago. To these we have added prints of three paintings by Joseph C. Payro done about 1930, and a print by Louis Linscott made in the 1930s or 1940s.

We believe that you will find these note paper packets attractive, useful, and wonderful for gifts. Also sales (and use) will spread the word about the Canal and our Association, and profits will enhance our treasury in a modest way.

BLACKSTONE CANAL CONSERVANCY

A new canal group, the Blackstone Canal Conservancy, Inc., a non-profit corporation, has been organized to publicize the Blackstone Canal and promote its preservation, study, use, and restoration. The canal ran for 46 miles between Providence, RI, and Worcester, MA, and from 1828 to 1848 was the principal transportation artery of the Blackstone Valley, the "Birthplace of the American Industrial Revolution." The canal was closed in 1848 when replaced by the parallel Providence and Worcester Railroad. Due to the mostly rural route, much of the canal remains.

Membership in the Conservancy for 1994 is $7 for students, $10 for individuals, $15 for families, and $25 for organizations. Applications and fees, payable to the Blackstone Canal Conservancy, should be sent to Richard T. Kleber, Blackstone River Valley National Heritage Corridor, One Depot Square, Woonsocket, RI 02895.

BLACKSTONE CANAL - CANALFEST '94

The second annual Canalfest will be held on Saturday, June 11, 1994 (rain date June 12) from noon to 8 p.m. in the Blackstone River and Canal Heritage State Park. Activities will be held at River Bend Farm on Oak Street at Hartford Avenue in Uxbridge, MA.

Activities will include horse-drawn carriage and hay rides; walks along the Lady Carrington Towpath and to Goat Hill Lock with National Park Service Rangers and Volunteers in Parks as guides; paddle boat rentals and a canoe flotilla on a watered section of the canal; boat rides to Goat Hill Lock along another section of the canal aboard the Blackstone Valley Explorer; a picnic area with food and beverage concessions; an exposition area with displays by various conservation groups; a performance by the Blackstone Valley Heritage Chorale; and, to conclude, an evening musical concert.

Further information is available by calling 401-334-7773 and asking for Val.

CANAL BEER!

A microbrewer, Middlesex Brewing Co. of Burlington, MA, has introduced a Brown Ale with a dark red label and an Oatmeal Stout with a dark blue label, both under the "Middlesex" brand. What is interesting is that both labels prominently feature a drawing of a canal packet boat, towed by horses, moving along a canal.


BICENTENNIAL GROUND BREAKING CEREMONY

In his entry for September 10, 1794, Loammi Baldwin wrote in his diary: "Broak ground in the Middlesex Canal on the Western shore of the Proprietors' mill pond [Concord River in Billerica]. I turned or dug the first spade full & Mr. Samuel Jaques the next, Benjamin Franklin Baldwin the next & Mr. Thomas Richardson the next. Then Myself and Mr. Jaques cut a sod for each of the absent directors & placed them on each side of the opening."

This simple ceremony marked the start of construction of the Middlesex Canal. The first part to be built was the 5-1/4 mile segment extending from the Concord River Millpond in Billerica to the Merrimack River.

The Middlesex Canal Association, together with the Billerica Historical Society, plan to commemorate this event with a bicentennial ground breaking reenactment this coming September 10 at the original site close to the old Faulkner Mill on the shore of the Concord River Millpond. A committee is being formed to plan and organize this ceremony. We would welcome hearing from anyone with ideas and also from people who would like to help with this endeavor; please call Burt VerPlanck at 617-729-2557.

1993 FALL CANAL WALK - BETWEEN AQUEDUCTS
contributed by Nolan Jones

About 60 canal enthusiasts traced the Middlesex Canal route from the Mystic River aqueduct to the Symmes River aqueduct for the fall canal walk. We started at the canal marker by the Boston Avenue bridge in Medford, followed the canal's route along Boston Avenue, Sagamore Avenue and Mystic Valley Parkway, and stopped at the site of the Symmes River (now Aberjona River) aqueduct.

The Middlesex Canal is buried under houses and streets for the first half of this walk, from the Boston Avenue bridge to the Mystic Valley Parkway. Towpath and sometimes prism are visible most of the way from the intersection of Sagamore Avenue with the Mystic Valley Parkway to the crossing of the Aberjona River. There is a bronze plaque on a granite stone where the canal crossed the Mystic Valley Parkway behind the MDC Sandy Beach swimming area in the Upper Mystic Lake. Heavy auto traffic on Mystic Valley Parkway normally prevents pedestrian traffic along this route, but reconstruction of the Aberjona River bridge in Winchester allowed us to follow this less traveled section of the canal this year.


WINTER MEETING

On Sunday, January 30, 1994 (one of the few pleasant days in this wild winter), more than 70 proprietors, members, and friends of the Middlesex Canal Association gathered at the Charlestown Navy Yard to hear a presentation by Teddi Lawton, a volunteer with the National Park Service, whose specialty is the historic interpretation of the Navy Yard and the Commandant's House. Ms. Lawton gave a fascinating illustrated lecture on the history of the Navy Yard and of the House.

The Navy Yard was set up after the American Revolution to take advantage of the profit that was to be had in the maritime trade. The period from the 1780s to the 1820s was America's great age of sail, and revenues from this trade paid for the running of the federal government. Boston and Salem were the prominent ports at the time.

In 1794, the Congress authorized an official navy, and the building of 6 frigates privately - finally, only 3 were built, of which the USS Constitution is one. In 1800, the Congress appropriated money to build the 6 original Navy Yards to build ships. The only one of these remaining active is in Norfolk, VA. The Boston Navy Yard was the "garage of the navy," repairing and outfitting existing vessels; there was not much shipbuilding here. The Commandant's House was built before the War of 1812.

In the 1820s, the government hired Loammi Baldwin II to design what became drydock #1. He was the engineer that actually developed the concept of a dry drydock. Drydock #1, an impressive granite structure, is still in use today - here is where the Constitution is now undergoing a thorough renovation.

Ms. Lawton showed us drawings and slides of the Navy Yard over the years, and the changing appearance and details of the Commandant's House.

Following the meeting, all joined in a rousing rendition of "Haulin' Down to Boston on the Middlesex Canal," the song written by David Dettinger especially for the Bicentennial program last fall. [See centerfold of this issue for words and music.]

APOLOGY

Flyers announcing our January 30th meeting were mailed 3rd class on January 4, but many members reported how late their copies were received. Some even received the flyer several days after the event. Usually a lead time of over 3 weeks has been ample. In the future, we will have to send our bulk mail even earlier, or resort to first class postage.


Haulin' Down to Boston on the Middlesex Canal


MIDDLESEX CANAL BOOKS

The association has now procured hard covered copies of The Middlesex Canal. 1793 - 1860 by Christopher Roberts, a book originally published by the Harvard University Press in 1938. This book is 252 pages long and includes several appendices and an extensive bibliography. The book includes chapters on Massachusetts history before the canal, the construction of the canal, the Merrimack River canals, and other related matters.

Copies will be available at the May 8th annual meeting at the price of $50.00 each. For those wishing to purchase by mail, a $2.00 charge will be added for postage. For mail orders, please send a check for $52.00, payable to the Middlesex Canal Association, to David Barber, 16 Ballou Road, Hopedale, MA 01747-1833.

Work is also continuing on printing Lewis Lawrence's unpublished 1942 manuscript on the canal. Further information will be provided when appropriate.

CORRECTION

In connection with the article "A Short History of the Middlesex Canal Association" by Arthur L. Eno, Jr., that appeared in the September 1992 issue of Towpath Topics, Mr. Eno has pointed out to us that the section of the land in Billerica on the east side of the mill pond from Rogers Street to the water actually belongs to the Billerica Historical Society.


AGRICULTURE AND INDUSTRY: THE UNEASY ALLIANCE
by Catherine Clement, Esq.

[The highest point on the Middlesex Canal was where it crossed the Concord River mill pond in Billerica. The river was the main source of water for the canal. Since the mill dam was such an important adjunct to the canal, the following should interest our members. We are indebted to Catherine Clement for permission to use her article, which was published in 1993 in The Journal of the Massachusetts Supreme Judicial Court, Historical Society. About 80% of her article has been included. We also wish to thank Teddi Lawton for calling our attention to this article in the files of the Society for the Preservation of New England Antiquities. Catherine Clement was General Counsel to the Massachusetts Department of Food and Agriculture from 1985-1991. She practices law in Newton.]

Agriculture and industry in Massachusetts have always had an uneasy coexistence. The early mills and mill workers provided equipment and customers who were necessary to the farmers' survival, and the early farms provided raw materials and customers that were equally essential to the mills' survival. Unfortunately, both the mills and the farmers depended on sites next to rivers and the two groups were often in conflict.

The most dramatic moment may have come when the town of Hadley, having voted in 1750 to grant rights for a grist mill, voted in 1854 to take the mill rights back. The most protracted battle was the sixty-eight year conflict between mill owners in Billerica and the farmers who owned ten thousand acres of land upriver in Concord, Lincoln and Sudbury. That battle, fought in the courts and the legislature, led to the first significant articulation of agricultural policy in the region, a policy which exists virtually unaltered today.

Colonial policy "The General Interest of the Community"

For the first one hundred years of the Massachusetts Bay Colony, most decisions affecting economic life were made by the community, either through the General Court or the town meeting.

The General Court controlled jobs and land, voted corporations and granted patents. Since agriculture was a fundamental part of the economy, the needs of farmers were assumed to be incorporated in these economic decisions. For example, most manufacturing communities began as grants of water power rights for grist mills and saw mills. Some factories manufactured plows and other agricultural tools or used crops for their raw materials. One agricultural product, flax, was made into linen and linseed oil for paint.

Agriculture and manufacturing were so well integrated that, in 1646, when the first American patent was granted it was for the making of scythes and other agricultural tools. This patent was for the tools themselves and also for a factory to make them and it was at the newly discovered iron bogs in Saugus.

Two centuries later, Worcester, with twenty-two foundries, was the largest producer of agricultural implements in the United States. Farming, however, had not kept pace; eighty percent of the plows manufactured in Worcester were sold out of state.

Factories ran on water power. Since a reliable source of power was needed, dams were built. In the early years the dams were small, but they still caused a little flooding, or flowage upstream.

At no time did the colonials consider it necessary to permit damage awards for flowage, because the factories and grist mills were established by community vote, for the good of all. As a later case on water power would state, the test was whether the grant of the mill rights was "favorable to the general interests of the community."

Changing Attitudes in the East

The Hadley experience seemed terribly unfair to the farmers, but in the eastern part of the state, events were coming to a head over a mill site which had caused far more harm to the agricultural economy, and environmental damage that would seem unbelievable today.

A man named Charles Talbot, who was to be famous for his mill holdings, and for his propensity to get involved in litigation, had bought some mills in Billerica whose original purpose had long since ceased. The water backing up from his mill dams flooded ten thousand acres of prime farmland on the Concord and Sudbury rivers. Good land was in short supply and the stage was set for a major battle over control of public policy.

Farmers do not ordinarily enjoy confrontation, especially when it takes as long as the battle over the Billerica milldams. To understand how farmers reached that point is to take a fascinating journey through the legal system of the eighteenth and nineteenth century.

The Mill Acts

The first laws regulating mills were enacted around 1709, but did not afford relief from the flooding ("flowage") created by mill dams. When the General Court added a provision for damages in 1714, it was with the greatest reluctance. The remedy for damages from flowage was an appraisal "by a jury of good and lawful men." Upon that appraisal, the aggrieved landowner could then bring an annual action for debt for damage actually done. That required taking legal action every year.

Unfortunately for the farmers, the remedy had to be petitioned for in the first year after a dam was approved. If the dam was not built until later, or was expanded later, the farmer was out of luck. If there was a drought that year or the dam operated seasonally at first, so no flooding occurred during the growing season, the farmer was also out of luck. In the biggest damage case of all, the permanent flooding of ten thousand acres twenty miles upstream from the dams on the Middlesex Canal, not one penny was paid under the Mill Acts.

The Middlesex Canal Cases

It is hard for people today to see how a grant of milldam rights for a small corn mill in 1708 could be a license for a manufacturer to flood ten thousand acres of prime farm land and homes in the 1850s, but that is what happened in the Middlesex Canal cases. It took twenty-two years of litigation, two legislative studies and the skills of some civil engineers from Italy to settle things. In the end, the Supreme Judicial Court, the legislature, and the public were in agreement on a new policy, placing agriculture on an equal footing with industry.

Mill dam on the Concord River in Billerica

Above: Mill dam on the Concord River in Billerica, looking upstream from Faulkner Street Bridge. Middlesex Canal boats crossed the pond at upper right, via the famous floating towpath. (Photo by James L. Faden, circa 1930)

The first milldam across the Concord River in Billerica was erected by one Charles Osgood in 1711, under a requirement that he maintain a corn mill. In 1793, deciding that the region needed a canal connecting the Merrimack River to Medford and Charlestown, the legislature chartered the Middlesex Canal Corporation and later financed it by a legislative grant of water power rights. Needing a good flow of headwaters for their canal, and needing the money that the sale of water power would bring, the corporation purchased the old dam and mill privilege. The old dam was rebuilt in 1798 and an entirely new dam was constructed in 1828.

The new dam was a disaster. The "fall" of water on the Concord and Sudbury Rivers above the dam was only two inches per mile for twenty-two miles above the dam, and the new construction was about thirty inches higher than the original dam. Farmers twenty miles upriver, who had never imagined that the Billerica mills would affect them, found themselves unable to farm.

A well-organized group of farmers brought suit. They were the Proprietors of Sudbury Meadows, incorporated by the legislature to farm the fertile soil along the Sudbury River. They tried to argue that the Canal could not expand its water rights beyond the level at which the dam stood when the canal was incorporated in 1793 or when water rights were granted in 1798. The Supreme Judicial Court disagreed. It said that there was "no limitation of time" during which the canal could build dams and flood land, that the canal corporation could take (flood) whatever land was necessary, use whatever water power was necessary, and, worst of all, that the canal corporation, by virtue of its legislative charter, was the sole judge of what was "necessary." To add insult to injury, the Court decided that farmers could only bring claims for one year from the date of the original construction for the canal headwaters (1796), even if the actual damage from new construction did not become apparent until decades later.

The Canal is Abandoned

For all the damage that it did, the Middlesex Canal did not actually prosper, partly because it froze solid in winter, and partly because the trip, one way, took eight hours. When railroads were built in the area in 1835, people stopped using the canals. Although there was some freight shipped on the Middlesex after that, the enterprise was entirely abandoned in 1851. The canal company petitioned the legislature for leave to formally abandon their charter, but were refused, perhaps because the associated water power rights were too important to local factory owners.

The canal company sold its land and charter to a group of investors who wanted the residual manufacturing rights in water power. The use of the dams for manufacturing in mid-century was far more injurious to farming than the earlier use as a canal had been. As a later court noted, the canal had taken water out of the river in the summer and fall, which minimized flooding and crop damage, whereas the mills would use the dams to build up water power during any season, leaving farmers at their mercy.

It is often said that a grant of property rights for a public purpose ceases when the public purpose ceases or is abandoned. On that theory, David Heard, a descendant of one of the earlier plaintiffs, sued the investors who had bought what remained of the Middlesex Canal Company, claiming, essentially, that the charter had been abandoned. He lost. Justice Bigelow, speaking for the Court, declared that the act of incorporation, in 1793, and the legislature's grant of water rights in 1798, on the original small dam, for the seasonal and harmless use of water for a canal, afforded an exclusive remedy as to damage caused by unanticipated development of unrelated manufacturing sixty years later. Bigelow felt there was no turning back from the original grant, no matter how much circumstances had changed.

The Legislature Hears the Farmer

The second Heard case was more than people could stand. According to a contemporary writer, the towns of Wayland, Sudbury, Bedford, Concord, and Carlyle, which lie on the banks of the affected rivers, demanded relief from the legislature. A special joint committee convened and actually reported out a bill that directed the entire dam to be torn down. After subsequent negotiation an act was passed which established a commission with power to remove thirty-three inches of the dam, "and when the same is removed it shall not be again rebuilt."

Talbot challenged the constitutionality of the law, claiming that it was an illegal taking for a private benefit. Justice Bigelow, who was by then Chief Justice, spoke for a unanimous court when he said that the removal of the dam was "clearly within the constitutional authority of the legislature to take it."

There was no precedent whatsoever for protecting the interests of agriculture, unless the court went back to early colonial or English law. Bigelow relied on no cases, but on his own power of reasoning when he said:

The advantages of which may result from the removal of the [dam] are designed to embrace a large section of land lying in one of the most populous and highly cultivated counties in the State and by increasing the productive capacity of the soil to confer a benefit, not only on the owners of the meadows, but on all those who will receive the incidental advantages arising from the development of the agricultural resources of so extensive a territory.

Stating that his views were in fact supported by "a broad and comprehensive view" of the Declaration of Rights, Bigelow decided that there was no good reason for discriminating between different branches of industry:

...If it is lawful and constitutional to advance the manufacturing or mechanical interests of a section of the State by allowing individuals acting primarily for their own profit to take private property, there would seem to be little, if any, room for doubt as to the authority of the legislature, acting as the representatives of the whole people, to make a similar appropriation, by their own immediate agents in order to promote the agricultural interests of a large territory.

Bigelow then lowered the boom on manufacturing:

Indeed, it would seem to be most reasonable... to hold that the legislature might provide that land which has been taken for a public use... should be relieved from the burden, if the purpose for which it was so appropriated has ceased to be of public utility.

The Public is Accommodated

With Bigelow's threat ringing in his ears, Talbot finally found a solution to the farmers' problems with the mill dams. In fact, the technology for draining the farmland above milldams had been available for several decades, primarily from Italy. Thoreau had commented on experiments in drainage as early as 1853. With huge investments in mill sites at stake, Talbot persuaded the legislature to suspend the act removing his dam, and to hire civil engineers at government expense to preserve the farmland without destroying his hydro-power dams.

The Court by now was firmly established on a course that balanced manufacturing with other interests. In 1866, in the case of Storm v. Manchaug Company, Justice Hoar gave formal approval to the right of upriver landowners to use the new technology to drain flowed land. In the same term of the court, in the case of Merrifield v. Lombard, Chief Justice Bigelow affirmed the right of downstream landowners and granted a "perpetual injunction" against a factory owner's practice of dumping caustic chemicals into a river below his factory.

As a result of the new civil engineering technology, which helped to reclaim their cropland, the farms of the Concord and Sudbury Rivers became highly profitable, feeding the rapidly growing population of Boston well into this century. The policies articulated by the court in Talbot v. Hudson became the cornerstone of Massachusetts agricultural law, a protective tradition which continues to this day.

Return address