I’ll Sue! Mill Owners vs. the Town of Arlington

In 1873, the growing town of Arlington planned to build a municipal water delivery system. An earlier private venture to draw water from Spy Pond had not succeeded, so the town decided to take matters into its own hands, this time using the Lexington Great Meadows watershed as the source. There was already a dam at the southeast tip of the Great Meadows, near the border with Arlington. “Sucker Brook” (aka Mill Brook) flowed primarily from the water released by this dam. It provided the motive power for nine different mill sites downstream.

The town’s plan to take land (in Lexington) by eminent domain was authorized by article 242 of the 1873 state legislature. The bill disallowed pre-emptive litigation by those who felt that they would be harmed by the project but provided for suits for damages if actual damage occurred. In that event, a three-member commission would arbitrate the case, and if any party to the dispute was dissatisfied with the result, a jury trial could proceed. In June 1873, the town began diverting water from the brook and in March of 1874 the legal fight began.

The mill owners each held a “mill privilege” that gave them the right to impound water, flood land, and use the water for power. Although the mills still drove machinery with water, steam engines were coming into use. Charles Schwamb had an auxiliary steam engine as early as 1872, when a drought severely reduced flow in the brook. In the litigation, the eight owners downstream of Slocum claimed that their properties had been damaged by effective erosion of the mill privileges. Collectively, they asked for $350,000 in damages, a sum the town declined to pay. Slocum’s mill was part of the land “taking” by eminent domain. He contested the compensation he was given, but was not involved in the battle over property damage.

The question of how much compensation–if any–to pay the mill owners became a topic at town meeting. (Here is a link to the the coverage of the town meeting discussion in the Lexington Minute-Man.) It would be fascinating to learn more of what was said in the open debate, and even more fascinating to learn what was said behind closed doors. The situation seems strange: the town knew it could be liable for damages, yet it had no contingency plans for that possibility. And why would the town risk angering the mill owners in the first place? Weren’t they important to the local economy? On the other hand, wouldn’t the lawsuit against the town anger the citizens? Did the mill owners really need the water so much? To further complicate the situation, mill owner John Schouler was a selectman. Schouler, in fact, filed the first lawsuit, a contest that he eventually settled out of court. The other seven mill owners became parties to a joint claim that would be adjudicated.

By November 1874, the Middlesex Superior Court had appointed a commission to decide the case, and hearings began in January of 1875. The commissioners ruled in favor of the mill owners, but only to the tune of $74,500 total. The biggest award ($16,000) went to Fowle, but Hobbs got the largest percentage of his claim ($11,000 or 44%). In addition, Fowle, Griffiths, and Hobbs claimed damages to the value of specialized equipment that was now unusable without water power. The commission ruled in their favor, awarding an additional $7600 to these men and also tacking on $12,900 in interest charges on the whole settlement (dating from the first diversion of water).

Facing nearly $100,000 in penalties, the Arlington pursued its limited options. Town meeting authorized the selectmen to negotiate with the mill owners, and an appeal was made to the Supreme Judicial Court, alleging that the commission had ruled in error. The latter move backfired, the SJC ruling that the commissioners had erred only in attaching conditions to the damages for machinery. The commission said that those damages need not be paid until the owners actually removed the supposedly worthless machines from the properties. “No,” said the court, they were eligible for payment right away. Unsuccessful in negotiation or appeal, the town opted for a jury trial in the Middlesex Superior Court.

The trial, that concluded in 1878, still found for the mill owners, but reduced the payout. The town was further obligated to pay the plantiffs’ court costs for a grand total of about $76,000 (equivalent to over $2 million in 2022). One of the town’s arguments through the whole dispute was that the mill owners had no right to the dam at Great Meadows, the origins of which were actually unknown. Though the available documents are not clear, the town was presumably saying that the mill owners had no entitlement to the steady supply of water made possible by the dam.  Therefore the mill owners could not complain that their right to water power had been impaired if the town pulled some of the water away. But this argument foundered on a wrinkle in eminent domain law: the loss of “reasonably expected” benefits. Let’s say that you have a spring on your property that feeds my well next door. Now say that a strip of land on your property is taken by eminent domain, and a railroad bed is laid down between the spring and my property. If this construction project cuts the flow of water reaching my well, I can sue for damages, for that water was a benefit that I could reasonably have expected to continue into the future.

The town had to cough up compensation, and to cap off the fiasco the water it had chosen to access at the start of the controversy wasn’t particularly clean. In 1899 the town gave up on its home-grown water works and joined the Metropolitan Water District. Arlington can, however, take comfort in the knowledge that it still owns the Great Meadows, a now-priceless tract of open space.

Tom Calderwood, Old Schwamb Mill

The Mill’s story has many chapters, including episodes that come to life because of volunteer research efforts such as Tom’s. You can help too! Visit the Mill’s Donation page to contribute to the museum securely online via PayPal or credit card.

3 thoughts on “I’ll Sue! Mill Owners vs. the Town of Arlington

  1. edhg says:


    While all the litigation was proceding, what happened at the mills? Did all if them transfer to alternative energy sources, or did some close?

    And is that, then, the date from which the Schwamb’s operations “went electric,” or did it continue on a hybrid basis for a time afterwards?

    DLa Rue


  2. drchasejetpack says:

    It’s interesting that the mill owners managed to argue for loss of “reasonably expected” benefits. The farmers who lost access to spring fish runs and fall wet-meadow grass harvests repeatedly lost in court to mill owners’ rights to run profitable machinery–in Concord, and around the Commonwealth, just a few decades earlier.


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