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established. Thus it was said in the late case of Georgia v. Tennessee Copper Co., 206 U. S. 230, 237:

The caution with which demands of this sort, on the part of a State, for the relief from injuries analogous to torts, must be examined, is dwelt upon in Missouri v. Illinois, 200 U. S. 496, 520, 521. But it is plain that some such demands must be recognized, if the grounds alleged are proved. When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. Illinois, 180 U. S. 208, 241.

But the case presented must be one of serious and general interest to the complainant. So, in Missouri v. Illinois, 200 U. S. 496, 521, the court said:

Before this court ought to intervene, the case should be of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side. See Kansas v. Colorado, 185 U. S. 125.

Is the case presented by the situation in the town of Sheffield such a case that the highest court in the land would hold that it was of such serious magnitude as would, between sovereign and independent States, justify a resort to war? See Missouri v. Illinois, 200 U. S. 518, 520. I say without hesitation that it is not; that injuries of the character here complained of have existed and have been tolerated if not recognized by the courts of the several States for a long time. Indeed, our own court has declared the principle which governs acts of the character here set forth. In Mannville Co. v. Worcester, 138 Mass. 89, the court expressly recognized the possibility of creating an easement upon land in one State by acts accomplished in another. That case was an action of tort by the owner of a mill site in the State of Rhode Island for the diversion of waters in Massachusetts. The court held that there was no distinction between flowage and diversion, and in dis

posing of a contention that a servitude could not be created in one State in favor of lands in another State, said:

We are unable to agree to this proposition upon either principle or authority. Every decision and dictum that we have found, bearing on the precise point, is the other way. Slack v. Walcott, 3 Mason, 508, 516; Thayer v. Brooks, 17 Ohio, 489; Stillman v. White Rock Manfg. Co., 3 Woodb. & M. 538; Rundle v. Delaware & Raritan Canal, 1 Wall. Jr. 275, S. C. 14 How. 80; Foot v. Edwards, 3 Blatchf. 310.

We think that the cases which recognize civil, and even criminal, liability for flowing land in one State by means of a dam in another, are hardly less pertinent. Howard v. Ingersoll, 17 Ala. 780; Wooster v. Great Falls Manfg. Co., 39 Maine, 246; Eachus v. Illinois & Michigan Canal, 17 Ill. 534; Armendiaz v. Stillman, 54 Texas, 623; State v. Lord, 16 N. H. 357. The defendant admits these cases to be law, and tries to distinguish them. But we cannot assent to the distinction between discharging and withdrawing water.

The court further observes:

Of course the laws of Rhode Island cannot subject Massachusetts land to a servitude, and, apart from any constitutional considerations, if there are any, which we do not mean to intimate, Massachusetts might prohibit the creation of such servitudes. So it might authorize any acts to be done within its limits, however injurious to lands or persons outside them. But it does not do either. It has no more objection to a citizen of Rhode Island owning an easement, as incident to his ownership of land in that State, than it has to his owning it in gross, or to his purchasing lands here in fee. Questions might be conceived as to the transfer of such easements, but they do not arise here. Slack v. Walcott, ubi supra. So far as their creation is concerned, the law of Massachusetts governs, whether the mode of creation be by deed or prescription, or whether the right be one which is regarded as naturally arising out of the relation between the two estates; being created, the law of Rhode Island, by permission of that of Massachusetts, lays hold of them and attaches them in such way as it sees fit to land there, Massachusetts being secured against anything contrary to its views of policy by the common traditions of the two States, and by the power over its own territory which it holds in reserve.

In speaking of this case the court said, in Mulhall v. Fallon, 176 Mass. 266, 267:

We come then to the more difficult question, whether the plaintiff can claim the benefit of the act. However this may be decided, it is not to be

decided upon any theoretic impossibility of Massachusetts law conferring a right outside her boundary lines. In Mannville Co. v. Worcester, 138 Mass. 89, where a Rhode Island corporation sought to recover for a diversion of waters from its mill in Rhode Island by an act done higher up the stream in Massachusetts, it was held, following earlier decisions, that there was no such impossibility, although the point was strongly urged. It is true that legislative power is territorial, and that no duties can be imposed by statute upon persons who are within the limits of another State. But rights can be offered to such persons, and if, as is usually the case, the power that governs them makes no objection, there is nothing to hinder their accepting what is offered.

Moreover, the Supreme Court of the United States has recognized the same limitation, for in the case of Missouri v. Illinois, 200 U. S. 496, the court said (p. 521): –

But it does not follow that every matter which would warrant a resort to equity by one citizen against another in the same jurisdiction equally would warrant an interference by this court with the action of a State. It hardly can be that we should be justified in declaring statutes ordaining such action void in every instance where the Circuit Court might intervene in a private suit, upon no other ground than analogy to some selected system of municipal law, and the fact that we have jurisdiction over controversies between States.

The nearest analogy would be found in those cases in which an easement has been declared in favor of land in one State over land in another. But there the right is recognized on the assumption of a concurrence between the two States, the one, so to speak, offering the right, the other permitting it to be accepted. Mannville Co. v. Worcester, 138 Massachusetts, 89. But when the State itself is concerned, and by its legislation expressly repudiates the right set up, an entirely different question is presented.

It seems to me that we have here exactly the case of a servitude created in one State upon lands situated in another, against which no provision has been enacted in the State where the land is situated, and where full and adequate means of assessing damages have been afforded to individuals or corporations in their property; and that, so far as concerns the flowing of the land and the injury to private owners, there is no ground for action upon the part of the Attorney-General.

Upon the score of public health there is no evidence to show that any such situation exists as requires the intervention of the Supreme Court of the United States. The general public appears to be affected only to a limited extent, even by the flowing of riparian land and a section of some hundred yards in length of a highway and lesser damages to one or two other highways in the town of Sheffield. When one contrasts the statement of the situation at Sheffield, of the portion of the public affected, and of the very slight grounds for action upon the part of the Commonwealth as a sovereign State, with the situation of which the State of Georgia complained, in Georgia v. Tennessee Copper Co., supra, where the allegation of the bill, that a wholesale destruction of forest, orchard and crops was going on, and other injuries were being done and threatened in five counties, was amply sustained by the proof offered to the court, who found that noxious gas was carried by the wind great distances and over great tracts of Georgia land, - it seems hardly necessary to seek further authority for the proposition that it would be impossible to prove a case based upon the condition in Sheffield, which would bring an action by the Commonwealth against the Berkshire Power Company, a corporation and citizen of Connecticut, within the principle laid down by the Supreme Court of the United States as governing action by a State against a citizen of another State.


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