74. In JA's hand. Pleadings Book, p. [45–47]
. The writ was presumably drawn by Samuel Fitch, who entered the action at the Oct. 1772 Suffolk Inferior Court. After Josiah Quincy Jr., representing McCarney, prayed oyer (note
above) and filed a plea in abatement (note
below), the case was continued for the plaintiff to file a replication. The records do not indicate who won in the Inferior Court, but it was Clark who appealed to the Aug. 1773 Superior Court. There, with Blowers and Fitch representing Clark, and JA and Quincy appearing for McCarney, the plea in abatement was overruled and the case was continued for trial. After numerous additional continuances, the action was finally “dismist the appellant being” dead, in Aug. 1777. Min. Bk., Inf. Ct.
Suffolk, Oct. 1772, No. 91; SCJ Rec.
1775–1778, fol. 140; Min. Bk. 98, SCJ
Suffolk, Aug. 1773, N–26; Min. Bk. 103, SCJ
Suffolk, Aug. 1777, C–47.
This case, a dispute between the owners of two paper mills, illustrates the problem which arises when a stream's water level drops so much that it cannot supply all the riparian users. The plaintiff claimed that his was the earlier mill, and that the defendant consequently was bound to shut down in a time of shortage. Thus the plaintiff relied on what has since become known as the rule of prior appropriation: “first in time is first in right.” This principle is the law in the arid West today, but it is not now followed in Massachusetts, and was not the rule at common law in England. See Maass and Zobel, “Anglo-American Water Law: Who Appropriated the Riparian Doctrine?” 10 Public Policy
109–156 (1960). The common law followed the so-called riparian principle: every bona fide riparian proprietor has an equal right to the use of the stream, and must consequently suffer a proportionate diminution of that right when the stream falls. This point was not raised by the pleadings and was never passed upon in the Superior Court, due to the action's being dismissed. The fact that Clark seemed to rely on a prior appropriation theory suggests two possibilities: (1) he may have sought to assert a right by prescription, which would have had the same effect on the defendant as an application of the prior appropriation rule; (2) the Massachusetts lawyers may have, in substance, if not in form, followed the principle of priority. See note
below for a further discussion of this point. For other water cases, see Nos. 14