#### The Proprietors of Mills on Charles River, Petitioners, *versus*The Proprietors of Mills on Mill Creek and Neponset River.

Where commissioners appointed by this Court, by virtue of *St,*1808, *c,*8, and *St,*1808, *c,*100, with the powers of commissioners of sewers, to ascertain and by permanent boundaries to secure the proportion of water which ought to flow out of Charles river into Mill creek, drew up their report, but through accident it was not returned into court until after the lapse of many years, it was *held)*that it might still be presented for acceptance.

Whether a return and acceptance of such a report is necessary to give validity to the proceedings of the commissioners (the statutes being silent on this point), *qutsre.*

Mill creek is a natural stream running out of Charles river into Neponset river. The proprietors of Mills on Charles River were incorporated by *St.*1797, *c.*45, and the proprietors of Mills on Mill Creek and Neponset River, by *St.*1797, *c.*77. In pursuance of the provisions of *St.*1808. *c.*8, § *2,*and *St. 1808, c.*100, § *2,*Elijah Brigham, Jonas Kendall and Loammi Baldwin were, in 1809, appointed by this Court, commissioners, with the authority of commissioners of sewers, for the purpose of removing obstructions in Mill creek and Charles river, and fixing such permanent boundaries m each, as would secure the proportion of water which they should determine might run in each, agreeably to the statutes last mentioned. They were directed by the commission to make return of their doings to this Court as soon as might be, but the statutes contain no provision to that effect. The com *213missioner's drew up their report in September, 1813, but from accident it was not returned into Court until 1826, when this petition was presented by the Proprietors of Mills on Charles River tn have the report accepted and recorded.

*Oct. 30th,*1828.

The case was spoken to several times by *Gorham,*on behalf of the petitioners, and *Richardson,*on behalf of The Proprietors of Mills on Mill Creek, &c.

*Richardson*objected to the acceptance of the report,

prin cipally because of the lapse of time since it was made; because the commissioners had placed sills in Mill creek, which would prevent the channel from growing deeper, but had merely driven stakes in the bed of Charles river, which would not have a similar effect; and because, in endeavouring to fix the proportion of water in Mill creek to that in Charles river at Eliot’s Mills as one to three in dry seasons, they had, contrary to the statutes, altered the proportion which the mill-owners on the two streams had heretofore enjoyed; as appeared by a report made by commissioners in 1767, which had been found since the recent commissioners had made their report.

*Per Curiam.*

Though the commissioners were appointed in 1809, it does not appear that they acted until 1813. Certain things were done by them, in which the parties acquiesced until the present petition was filed. Although much time has elapsed since the report was made, we think it might be accepted now. The statutes do not expressly require a return to be made, and it may be that a return is not necessary to the validity of the proceedings ; but that point need not be determined at present.1 But the question being on the acceptance of the report, we have authority to consider it in the same manner as if this were the proper time for making the return. And as a slight alteration of the boundaries may be of importance to the parties, and as the report of 1767 was not before the commissioners in 1813, we think no additional sanction ought to be given by the Court to the proceedings of these commissioners.

The effect of this opinion may be, that the parties will enter *214into a long controversy, and as so many persons are interested, we would recommend to them to take out a new commission and have their rights ascertained. It has been suggested that this cannot be done, as the two statutes of 1808 require that the Court shall “ appoint the same persons who have been appointed commissioners on the application of the proprietors of Charles river meadows, [under *St.*1796, c. 84,] if any such commissioners shall at the time of such application be in office.” But we see no difficulty. If there is a commission subsisting on the application of those proprietors, the same commissioners must be appointed for the present parties ; if there is not, a new commission must be issued. The com missioners are restricted to defining the rights of parties as they existed at the time of passing these statutes ; the legislature, without doubt, having reference to the settlement of those rights by the commissioners in 1767 ; from which the recent commissioners deviated.

*Petitioners take nothing fyc.*

1

 See Revised Stat. *c.*115, § 11.