Chap. 0337 An Act to supply the town of waltham with water.

Be it enacted, &c, as follows:

Section 1. The town of Waltham is hereby authorized to supply itself and its inhabitants with pure water to extinguish fires, generate steam, and for domestic and other uses, and may establish public fountains and hydrants, and regulate their use, and may discontinue the same, and may collect such rents as may be fixed for the use of such water.
Section 2. Said town, for the purposes aforesaid, may take the water of Charles River in Waltham or Stony Brook, within said town, or in Weston, contiguous to said town, and any water rights connected therewith : provided, that nothing in this act shall prevent the inhabitants of the town of Weston from enjoying the several rights they now enjoy to the water of Stony Brook ; and may convey said waters, or any part thereof, into and through said town ; and may also take and hold, by purchase or otherwise, all necessary lands for raising, flowing, holding, diverting, conducting and preserving such waters, and conveying the same to any and all parts of said town ; and may erect thereon proper dams, reservoirs, buildings, fixtures and other structures, and make excavations and embankments, and procure and run machinery therefor; and for such purposes may construct and lay down conduits, pipes and drains in, under or over any lands, water-courses, roads or railroads, and along any street, highway, alley or other way other than a railway, in such manner as not to unnecessarily obstruct the same ; and for .the purpose of constructing, laying down, maintaining and repairing such conduits, pipes and drains, and for all other proper purposes of this act, may dig up, raise and embank any such lands, street, highway, alley or other way, in such manner as to cause the least hindrance to travel thereon; but all things done upon any railroad shall be subject to the direction of the county commissioners for the county of Middlesex: provided, that within ninety days after the time of taking any lauds, ponds or water rights as aforesaid, otherwise than by purchase, said town shall file, in the registry of deeds for the southern district of the county of Middlesex, a description thereof sufficiently accurate for identification, with a statement of the purpose for which the same
is taken, signed by the water commissioners hereinafter named.
Section 3. The said town of Waltham shall be liable to pay all damages that shall be sustained by any person or persons in their property, by the taking of the waters of said Charles River, or other source of supply, or any part thereof, as authorized by this act, or by the taking of any land, rights of way, water rights or easements, or by the erection of any dams, or the construction of any aqueducts, reservoirs, water-ways or other works for the purposes of this act; and if the owner or owners of any property which shall be taken as aforesaid, or other person or persons sustaining damages as aforesaid, shall not agree on the damages to be paid therefor, he or they may apply by petition for an assessment of the damages at any time within three years from the taking of the said property, or the construction of dams or other works occasioning damages as aforesaid, and not afterwards, to the superior court in the county in which the same are situated. Such petition may be filed in the clerk's office of said court, in vacation or in term time ; and the clerk shall thereupon issue a summons to the said town of Waltham, returnable, if issued in vacation, at the next term of the said court, to be held after the expiration of fourteen days from the filing of said petition; and if in term time, returnable on such day as said court shall order, to appear and answer to the said petition. The said summons shall be served fourteen days at least before the term or day at which it is returnable, by leaving a copy thereof, and of the said petition, certified by the officer who shall serve the same, with the clerk of said town; and the said court may, upon default or hearing of said town, appoint three disinterested persons, who shall, after reasonable notice to the parties, assess the damages, if any, which such petitioner may have sustained as aforesaid ; and the award of the said persons so appointed, or a major part of them, being returned into and accepted by the said court, shall be final, and judgment shall be rendered and execution issued thereon for the prevailing party, with costs, unless one of said parties shall claim a trial by jury as hereinafter provided.
Section 4. If either of the parties mentioned in the third section, shall be dissatisfied with the amount of damage awarded, as therein expressed, such party may, at the term at which such award was accepted, or the next term thereafter, claim, in writing, a trial in said court, and have a jury to hear and determine, at the bar of said court, all questions of fact relating to such damages, and to assess the amount
35
thereof; and the verdict of the jury being accepted and recorded by the said court, shall be final and conclusive, and judgment shall be rendered and execution issued thereon, and costs shall be recovered by the said parties, respectively, in the same manner as is provided by law in regard to proceedings relating to the laying out of highways.
Section 5. In every case of a petition to the superior court for the assessment of damages, as provided in this act, the town may tender to the complainant, or his attorney, any sum that it shall think proper, or may bring the same into court to be paid to the complainant for the damages by him sustained or claimed in his petition ; and if the complainant shall not accept the sum with his costs up to that time, but shall proceed in his suit, he shall be entitled to his costs up to the time of the tender of such payment into court, and not afterwards, unless the complainant shall recover greater damages than were so offered.
Section 6. For the purpose of paying all necessary expenses and liabilities incurred under the provisions of this act, said town shall issue coupon bonds, signed by the treasurer, and countersigned by the chairman of selectmen of said town, to be denominated " Waltham Water Bonds," to an amount not exceeding two hundred and fifty thousand dollars, payable at periods not exceeding thirty years from the date thereof, with interest semi-annually at a rate not exceeding seven per centum per annum; and said town may sell said bonds at public or private sale, or pledge the same for money borrowed for the purposes of this act, upon such terms and conditions as it may deem proper, and may raise money by taxation to pay said bonds and interest thereon when due; but said town shall not raise more than ten thousand dollars in any one year to pay the principal of said bonds, except the year in which the same may become due.
Section 7. Three persons to be elected by ballot by said inhabitants, as hereinafter provided, shall form a board of water commissioners, who shall execute, superintend and direct the performance of all the works, matters and things mentioned in this act, and exercise all the rights, powers and privileges hereby granted, and not otherwise specifically provided for herein, subject to the vote of said town.
Section 8. At any special or annual meeting of the inhabitants of said town, called for the purpose, one of said board of water commissioners shall be elected for a term ending one year, one for a term ending two years, and one for a term ending three years from the next succeeding annual town meet-
ing; after which first election one-third of said board, as the term expires, shall be elected at the annual town meeting for the term of three years. Said commissioners shall receive such salaries or compensation as said town by vote may prescribe, and a majority of said commissioners shall be a quorum for the exercise of the powers and duties prescribed by this act.
Section 9. Said water commissioners shall establish such prices or rents for the use of the water, as to provide annually, if practicable, from the net income and receipts therefor, for the payment of the Waltham water bonds, and also after three years from the introduction of the water into said town, for the further payment of not less than one per centum of the principal of said bonds. The net surplus income and receipts, after deducting all expenses, interest and charges of distribution, shall be set apart as a sinking fund, and applied solely to the payment of the principal of said bonds until the same are fully paid and discharged. Said water commissioners shall be trustees of said fund, and shall annually, and as often as said town may require, render an account of all their doings in relation thereto.
Section 10. At any time after the expiration of three years from the introduction of said water into said town, and before the reimbursement of the principal of the said Waltham water bonds, if the surplus income and receipts for the use of water distributed under this act, at the price established by the water commissioners, after deducting all expenses and charges of distribution, shall for any two successive years be insufficient to pay the accruing interest on said bonds, and the one per cent, to the sinking fund as aforesaid, then the supreme judicial court, or any justice thereof, on the petition of sixty or more of the legal voters of said town, praying that said price may be increased so far as may be necessary for the purpose of paying, from said surplus income and receipts, said accruing interest, and said one per cent, to the sinking fund, and upon due notice of the pendency of such petition, given to said town, in such manner as said court shall order, may appoint three commissioners, who, upon due notice to the parties interested, may raise and increase said price if they shall judge proper, so far as may be necessary for the purpose aforesaid, and no further; and the award of said commissioners, or the major part of them, being returned to the said court at the next term thereof for the southern district of the county of Middlesex, and accepted by the said court, shall be binding and conclusive for the term of three years next after
the said acceptance, and until the price so fixed shall, after said term, be changed by said water commissioners or by said town.
Section 11. The occupant of any tenement shall be liable for the payment of the rent for the use of the water in such tenement, and also the owner thereof shall be liable, if, on being notified of such use, he does not object thereto.
Section 12. Any person who shall use any of said water without the consent of said town, except as herein before provided, or who shall wantonly or maliciously divert the water, or any part thereof, taken, held or used under the provisions of this act, or who shall wantonly or maliciously corrupt the same, or render it impure, or who shall wantonly or maliciously destroy or injure any dam, conduit, aqueduct, pipe or hydrant, or other property, real or personal, held, owned or used by said town for the purposes of this act, shall pay three times the actual damage to said town, to be recovered by an action of tort. Any such person, on conviction of either of the wanton or malicious acts aforesaid, shall be punished by fine not exceeding one hundred dollars, or imprisonment not exceeding six months, or both said penalties.
Section 13. The town of Waltham may, by a vote of said town, declare the quantity proposed to be taken, not exceeding one and one-half million gallons daily ; such vote to be passed not less than six months before the water shall be withdrawn from said river, and a copy of such vote being filed in the registry of deeds for the southern district of the county of Middlesex within sixty days thereafter, the terms thereof shall be held to be the measure and limit of the right of said town to take or divert the waters of said river, and in case of a joint taking by any towns under this act the provisions of this section shall apply to such towns jointly, so far as any damage results from such joint taking. It shall be the duty of said town to provide some reliable means or method of measuring and registering the amount of water taken from Charles River or Stony Brook as soon as they commence taking the same, such register or record to be accessible at all times to any interested parties; and if the owners of any water rights in the waters of said river or said brook, and said town, shall fail to agree upon the mode of measurement, the method shall be fixed by one or more engineers, to be appointed upon the application of either party, by any justice of the supreme judicial court. And if at any time said town shall take a larger quantity of water from Charles River than it shall have determined by
said vote under this section, it shall be liable in an action of tort to any mill owner for any such damage to which he is legally entitled, and may be restrained by injunction from taking such larger quantity of water, in a suit in equity brought by any such mill owner or other party.
Section 14. Nothing in this act shall be construed to affect any existing right of said town of Waltham to draw water from said river or brook.
Section 15. Nothing in this act contained shall prevent the granting the right to take water from Charles River to any other town or city.
Section 16. This act shall be void unless accepted by a majority of the legal voters of said town of Waltham, present and voting thereon, at a legal meeting held for the purpose within one year from the time this act goes into effect.
Section 17.   This act shall take effect upon its passage.
Approved May 4, 1872.