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Colburn v. Richards

Ichabod Colburn and Another versus Luther Richards

Colburn v. Richards, 13 Mass. 420 (1816)
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Court
Massachusetts Supreme Judicial Court · State Highest Courts
Decided
October 15, 1816
Judges
Parker
Citations
13 Mass. 420
Cited by 18
Headnotes
One owning an ancient mill may lawfully go upon the land of another, and remove an obstruction, erected across the stream for the purpose of irrigating the land, by which the mill is prevented from working.
Summary
Trespass for breaking and entering the close of the plaintiffs, and destroying a certain water-gate, &c. The parties submitted the action to the determination of the Court upon the following case, namely ; — The plaintiffs are seized and possessed of the meadow described in their declaration, through which runs an ancient watercourse ; and about seven years since, for the purpose of irrigating and fertilizing their said meadow, they erected a dam, and placed a gate, at a place in the said meadow where were the remains of an old dam, but where there had been no dam, within the memory of man, sufficient to stop the water. Since the erection of the said dam, the plaintiffs have shut down their said gate, and flowed their meadow at pleasure, during the winter. The defendant owns a grist-mill, which has been built about fifty years, situated about three quarters of a mile below the plaintiffs’ dam, and on the same stream ; to which, before the erection of the said dam, the water ran without impediment through the meadow of the plaintiffs ; and now, all the water of said stream, after it has been raised to the height of the plaintiffs’ dam by shutting down said gate, runs in its ancient channel to the said grist-mill ; except what is absorbed in the soil of their said meadow, or evaporated. But, while the water is rising, after the said gate is shut down, the defend ant’s said grist-mill is nearly useless. On the 25th of November, 1815, the plaintiffs shut down their said gate, and thereby stopped the water of said stream, so that the defendant was unable to use his mill, except during a short time each day. Wherefore, at the time in the declaration mentioned, the defendant drew up and took away the said gate, and thereby prevented the plaintiffs from overflowing their said meadow. * If, in the opinion of the Court, the plaintiffs could by law maintain this action, the defendant agreed to be defaulted, and that the plaintiffs’ damages should be assessed by a jury ; otherwise, the plaintiffs were to become nonsuit.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Parker

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Parker, C. J.,

delivered the opinion of the Court. In the case of Hodges vs. Raymond & al., cited from 9 Mass. Rep. 316 , the common law doctrine is recognized ; one, having a right to a watercourse to carry his mill, may justify entering upon the land of one who has erected any obstruction, to remove it. That is precisely the case of the defendant in this action ; unless the purpose for which the dam was erected by the plaintiff, namely, to irrigate and fertilize his meadow, forms an exception to the general rule of law.

*338 According to the case cited from 1 Wils. 175, the plaintiffs had no right to adopt any new measure to irrigate *their land, the consequence of which would be injurious to the priyilege below. But it has been urged, u'$tt the case of Weston vs. Alden is an authority in point, to establish the right claimed by the plaintiffs. There is, however, this difference between that case and the one now before us., In that case, there was no obstruction to the course of the water; sluices-were made for it into the land of the defendant in that action, and the water, after washing his lands, still passed down the natural channel. Nor does it appear in that case, that the plaintiff had acquired a' right by prescription to the use of the stream, to carry works which had been erected and maintained at expense ; but he had merely enjoyed the natural benefits of the stream, without any labor or expense of his own. In the case before us, the whole stream was stopped, or, at least, so much of it as to render the defendant’s mill entirely useless. There is no principle upon which this can be justified ; and we think that the defendant had a perfect right to remove the gate which occasioned him the injury. The plaintiffs must be called.

Plaintiffs nonsui¿

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 18 cases

View all citing references →
1823–1824: 11831–1832: 11843–1844: 11847–1848: 11849–1850: 11851–1852: 31855–1856: 11879–1880: 21883–1884: 11885–1886: 11887–1888: 11903–1904: 11907–1908: 11969–1970: 11973–1974: 118232026peak 1851 · 3

Relies on it most ⓘ

  1. Lux v. Haggin10 P. 674 (Cal. 1886)
  2. Elliot v. Fitchburg Railroad64 Mass. 191 (1852)
  3. McBRYDE SUGAR COMPANY, LIMITED v. Robinson504 P.2d 1330 (Haw. 1973)
  4. Brown v. Chadbourne31 Me. 9 (1849)
  5. Stein v. Burden29 Ala. 127 (1856)
  6. Anderson v. Cincinnati Southern Railway5 S.W. 49 (Ky. Ct. App. 1887)

Most recent

  1. McBRYDE SUGAR COMPANY, LIMITED v. Robinson504 P.2d 1330 (Haw. 1973)
  2. Robert Williams, Inc. v. Ferris244 N.E.2d 736 (Mass. 1969)
  3. Dummer v. United States Gypsum Co.117 N.W. 317 (Mich. 1908)
  4. Chee Kit v. Lee Lung15 Haw. 69 (1903)
  5. Anderson v. Cincinnati Southern Railway5 S.W. 49 (Ky. Ct. App. 1887)
  6. Lux v. Haggin10 P. 674 (Cal. 1886)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Hodges v. Raymond, 9 Mass. 316 (1812) 20

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