Midnight Ride, Industrial Dawn

by Robert Martello

  Revere built and operated a dam early in his copper-rolling endeavors in order to overcome the river’s variability and regulate its flow as much as possible. The dam allowed Revere to regain some control over nature by letting him store water overnight, on holidays, or when the river level was low, and release it in short, powerful torrents when he wished to run his mill. Although this solution might have seemed an extremely efficient way to make the best of a bad situation, other river users did not always agree.

  Revere was far from the only businessman operating dams along the connected Neponset and Charles rivers. By 1800, the Charles River contained at least eight dams and twenty mills, the majority of which had been built since 1775. As the river became more congested, different constituents struggled to implement their competing views of the river. Peaceful negotiations gave way to private conflicts that eventually found their way into the courts, forcing judges to interpret and alter early riparian legal philosophies to correspond with changing societal demands.54

  Natural resource legislation provides an excellent window into a community’s environmental attitudes and property definitions. In colonial times all restrictive legislation emanated from Britain since England’s deforestation alerted Parliament to the consequences of resource depletion. Colonists greatly resented these impositions and did not accept that the needs of a distant empire justified their lost economic opportunities. This attitude influenced the post-Revolutionary government, which produced as few restrictions as possible. Circumstances eventually ran ahead of legislation when numerous lawsuits, particularly concerning competition for waterpower, illustrated the finite extent of natural resources and provoked the formation of ideology and policy to equitably distribute these common goods.

  The earliest water-use policies treated mills leniently because of their role in community development. Water-driven mills, typically saw and grist mills, often augmented the economic strength of frontier developments while also enriching their owners. These mills blurred the boundary between private and public institutions, and as a result, enjoyed significant legal protection under various “mill acts.” Courts often invoked this protection in response to dam construction, which produced the majority of river-use conflicts. Dams and holding ponds allowed mill operators to efficiently regulate the flow of water, but also obstructed the annual migration of fish (evidenced in plunging populations of previously abundant alewife, shad, and salmon following industrialization), impeded human navigation, flooded the land upstream of the dam, deprived downstream farmers of a steady supply of water, and potentially increased erosion. Because of the obvious utility of early “public” mills, most judges and legislatures, particularly in New England, considered industrial river uses second in importance only to navigation and fishing. Under these acts mill owners could flood their neighbors’ lands without permission as long as they paid a yearly sum to cover any losses incurred, treating this conflict in a quantifiable, purely economic manner. The mill act represented a major departure from the prior common law that allowed punitive as well as compensatory damages and also granted the injured party the right of “self-help”—destruction of the offending dam—to correct the problem.55

  The New England mill acts did not create undue controversy in the early years of the eighteenth century for several reasons. The large quantity of usable land allowed towns to minimize the impact of flooding, effectively sacrificing some upstream property to enable mills to serve the economic needs of the community. Flooding remained relatively minor in most cases due to the small water demands of most early saw and grist mills, which therefore had smaller impacts upon river flow than the larger and more numerous manufacturing mills of the early nineteenth century. And the parties on both sides of these early disagreements typically shared a common ideology: mill owners, farmers, and fishermen all operated in an interdependent community economy that included elements of subsistence as well as markets. Even when they had different concepts of the best way to employ a river, most users viewed it as a communal resource theoretically able to serve everyone, thereby strengthening the community as a whole. It was even a safe bet that the local mill owner farmed some land as well, further cementing the interests of the different members of this relatively undifferentiated early economy.56

  The relationship between mill owners and other river users deteriorated throughout the eighteenth century, particularly after 1750, when the number of blast furnaces and other large manufacturing operations increased. Blast furnaces did not fit into the values and work patterns of rural life, and instead required enormous volumes of water for sustained periods, devoted to the production of goods that would enrich the mill owner without visibly aiding the rest of the community. The increasing use of waterpower for personal profit instead of the public good necessitated a consistent quantification of the rights of different river users, and protests against the vast leeway granted to mill owners forced a reevaluation of the mill laws. These protests intensified against mill operators such as Samuel Slater, whose English heritage and large-scale technological operations marked him as an outsider and made him a lightning rod for local discontent.57 Many farmers raised petitions against mill owners throughout the late colonial and early republican periods, requesting, for example, that mill owners construct fish ladders, open dam gates to aid migratory fish, or lower dams to minimize the threat of flooded farmland. Public petitions along these lines fared well prior to the Revolution but began to lose their impetus in the face of a strengthening market economy. Favoritism benefited certain private industries such as ironworks in New England, primarily because many legislators and judges had not fully distinguished between public and private enterprises. Many citizens and communities still believed all forms of industrial development lay in the public’s best interests.58

  Preferential treatment for industrial water users constituted a significant departure from British common law, which defined rivers and streams as transient, ancient entities not subject to exclusive ownership by anyone. British common law considered any alteration to a river’s “natural flow” illegal. This doctrine never limited drinking, bathing, or the servicing of livestock—traditional activities that themselves appeared “natural”—but instead applied to larger alterations of the river’s flow such as irrigation or industry. A series of eighteenth- and early nineteenth-century legal decisions, particularly in Connecticut and Massachusetts, began altering the “natural flow” precedent after it prevented the establishment of new industries. Early laws proposed the “prior use” or “prescriptive” doctrine, which implied that mills had the right to use rivers for industrial purposes as long as they did not “wholly” obstruct their flow. Once any industry or individual established a pattern of water appropriation, it could sue latecomers who interfered with it. The law eventually dropped the “prior use” doctrine in favor of the “reasonable use” theory, which contended that land ownership included the right to use and alter the river water for business purposes, as long as such use did not unfairly injure other present or future users. This concept allowed each judge to apply his own definition of fairness, modified by the details of each case. In Massachusetts the results usually favored large business interests.59

  This situation grew more complicated when the majority of lawsuits pitted industries against other industries. By the nineteenth century, many rivers had become congested with industrial developments and dams regularly interfered with each other. The rapid growth of mills after 1815, primarily for textile production, forced courts to acknowledge that dams could interfere with both upstream and downstream users. At the same time, judges realized that the “prior use” doctrine favored monopolistic control of waterpower: the first user could claim that all future users at any point along the same river interfered with his established rights. As a result, the “reasonable use” criterion grew in popularity, particularly after 1825, until it became the established policy before mid-century.60

  Three types of water use controversies
took place throughout this period. First, downstream users sued upstream mills for altering the river’s natural flow by constructing dams that either choked off their supply or released water so quickly that it overflowed downstream dams. Second, upstream users sued downstream neighbors who built their own dams so high that they produced “backwater,” or elevated water levels in the river (perhaps leading to flooded riverbanks) that stopped their waterwheels. And third, neighboring landowners sued mills for flooding their land.61 Although Revere settled some of his controversies out of court, he had the dubious distinction of being involved in all three types of dispute.

  In October 1804 Revere sued Jonathan Leonard and Adam Kinsley for erecting and operating a dam that he claimed “obstructed and diverted the water” before it reached the waterwheel of his copper-rolling mill. Leonard and Kinsley owned an upstream ironworks (and, not coincidentally, are also the men who sold Revere his land four years earlier) and needed waterpower for their forge, saw mill, and grist mill. Revere’s dealings with Leonard and Kinsley were not always antagonistic: after buying the Canton property he carried out many transactions with them through 1803, including rum, corn, cast iron, lime, and other purchases. He also shared surveying expenses with them to establish the boundaries of each firm’s property in October 1802. This territorial action might also have foreshadowed the boundary disputes about to take place. In the early years, Leonard and Kingsley helped Revere, for example, by opening the gates of their dam for him on the rare occasions when he needed more water. In 1802 Leonard and Kinsley made their reservoir larger and deeper and controlled it with a more efficient mechanism, whereas the older one leaked. Revere found their dam use suspiciously hostile after that point: “It is in their power in a dry time to keep the water from us . . . if their saw and grist mills do not go, the water cannot come down the natural stream by reason of a mud sill which they have placed in the river . . . the water which passes their common works will not supply us one quarter of the time. They have frequently kept the water from us all day & lett it down in the evening after we had left work.”62 As a fellow manufacturer he knew Leonard and Kinsley had no logical reason to hoard water by day and release it at night. His description of his water shortage reveals his frustration, and he described at some length the actions he took to continue his production at a reasonable level. He reported that he “has been obliged to make a new wheel, a foot wider than the old one, to make a new floome so as to lengthen the gate a foot, or the mill would be of little service to him.”63

  Revere commissioned a study into the history of his land in preparation for an 1804 lawsuit that produced eleven pages of notes.64 The notes were probably submitted to the judge or paraphrased by Revere’s lawyer when he took Leonard and Kinsley to court later that same year. This research indicated that Sam Briggs sold land to the colony of Massachusetts in 1776 for the development of a gunpowder mill. The land included specific water rights to ensure that gunpowder production took place at steady levels: the gunpowder mill could order any upstream dams to open their gates in times of water scarcity. Massachusetts sold this land after the war and it passed through several other hands before Revere purchased it, with the water privilege transmitting verbatim through all the deeds. Revere’s 1801 deed from Leonard and Kinsley included a similar water right, granting him the right to “commanding the water thro any gates that are, or may be constructed between the Slitting Mill aforesaid and the Forge Dam on Taunton Road so called, whenever the same may be necessary for the use of the Slitting Mill Privilege.” According to these terms, Revere theoretically had the right to control the water flow through dams upstream of his own property, as far as the Forge Dam.

  Figure 8.3. Paul Revere’s map of his Canton property, from plan of Revere property on Neponset River in Canton. From Revere Family Papers, 1746–1964, microfilm edition, 15 reels (Boston: Massachusetts Historical Society, 1979), reel 15. This undated map was probably produced as one piece of evidence for Paul Revere’s 1804 water rights lawsuit against Leonard and Kinsley. The map highlights the importance of the Neponset River to Revere’s operations: two of his buildings abut the river and use dams to direct its flow into their waterwheels. Revere uses letter labels and dotted lines to attempt to explain boundaries of his property and the way he made use of each building. Courtesy of the Massachusetts Historical Society.

  Revere recognized that this privilege was quite ambiguous. What if Leonard and Kinsley erected a dam beyond the Forge Dam? Also, was the Forge Dam in the privilege the same as the current dam on Taunton Road? He attempted to prove that the Forge Dam corresponded to the primary Leonard and Kinsley dam that caused all his problems, and he argued that he had the right to order this dam to release water to him during the day. Unfortunately he ran into treachery from Leonard and Kinsley on two separate charges. First, he discovered an “erasure” on the deed in the place where a precise description of the dam’s location should have been. Revere might be able to command the “Forge Dam,” but the “Forge Dam” was now unspecified, and Leonard and Kinsley could indicate a lower dam on the river. In outrage, Revere exclaimed, “Ask any indifferent man in the Town where the Dam is on Taunton Road: they point to the one above.” Second, Leonard and Kinsley added language to the deed that prevented Revere from raising the river flow above a hole they drilled in a rock along the riverbed. He claimed they drilled this hole and inserted the new language “after the bargain was made & before the deed was delivered.” As in many of his earlier interactions with customers or suppliers, Revere placed immense importance upon the concept of honor, which Leonard and Kinsley forfeited when they attempted to cheat him. Revere also blamed his son’s absence and his own naivety for the problems, implying that his son would not have been fooled the way he was. On both of these occasions Revere signed deeds based upon verbal agreements and later learned that the specific wording deprived him of important assets.

  He finally had his day in the Massachusetts Supreme Judicial Court during the 1804 October session. The court case transcript confirmed, “it became important to ascertain the place of the forge-dam mentioned in the deed—the parties not agreeing to its location.” Testimony was called from Mr. Robbins, a source Revere claimed was allied to Leonard and Kinsley, and indeed, he upheld their definition of the dam. The court ruled against Revere on every count: the right to command all gates between his mill and the forge dam did not apply to the dam itself; he failed to prove definitively that his operations were harmed by the ironworks’ operation of the dam; and he had “no right to command the defendants to open the gates” of any dam, but at best could open the gates himself. The judges viewed his lawsuit as an unfair attempt to injure his competitors and defended everyone’s right to manipulate the river on their own property. Revere had to make two sets of payments to Leonard and Kinsley in addition to paying his own legal costs.65

  This matter was far from over. In 1808 Leonard and Kinsley threatened to sue Revere for building his own dam and raising its height until it impeded their operations. The pair claimed the dam was “considerable higher” than his water right allowed and “does much damage by causing the back water to flow against our forge, grindstone, and gristmill wheels.”66 Revere apparently reacted to his earlier failed lawsuit by taking the water situation into his own hands, though not in the exact manner suggested. If he could not control the rate of water release from the upstream mill, he could still build a high dam to catch the water before it reached his waterwheels, and then release it as he saw fit. But he might not have stopped there.

  Revere’s papers include an undated deposition from Abner Crane that was later dated “1808?” and took place no earlier than 1807. Abner Crane was related to Elijah Crane, a neighbor of Revere’s whose land was flooded when he raised the dam. According to Crane, Revere had the right to a certain quantity of water as measured by a hole driven into a stone along the riverbed. Crane measured the height and location of the hole in 1803 and again in 1806, and noticed that the hole had been r
aised. The original location showed signs of tampering and the new hole was smaller.67 Leonard and Kinsley probably sent this deposition to Revere in preparation for their lawsuit. Did Abner have an incentive to provide false testimony, or did Revere or his son actually move the hole to increase their water right and rebel against what they saw as underhanded dealings by Leonard and Kinsley? We cannot answer these questions from the available evidence, but at any rate the two parties resolved this issue without the need for additional lawsuits. Considering the low flow of the Neponset River, the movement of new industries to the Canton area, and the increasing scale of Revere’s business, we can safely assume that competition for water did not end in 1808.

  Revere’s riparian lawsuits spilled into other land-use disputes. On February 17, 1808, the selectmen of the town of Canton sent Revere a letter announcing that they would build a road through his property “within a few hours,” leaving him no opportunity to protest. In a follow-up letter Revere hinted at a possible motivation for this sudden action: “The petitioners do it from wiked hearts, their whole view is to hurt us and not help themselves.” These petitioners happened to be the Cranes, the same family whose land Revere flooded when he built his dam, and who testified that he moved the hole in the rock. Revere believed the Cranes “have aimed at our ruin since Jonathan Leonard returned from Kent to Canton. We know their views and we believe that their intention is to drive us from Canton, that they may purchase our Estate for less than nothing.”68