Brown v. Dean

Under the Gen. Sts. c. 127, § I, an action of tort against a mill-owner, who obstructs the flow of water in a stream by maintaining Ms dam at too great a height, to the injury of another mill-owner, survives. A mill-owner, who partially obstructs the flow of water in a stream from his own mill, is not thereby prevented from maintaining an action against another mill-owner, lower down the same stream, for the injury caused by an additional obstruction in consequence of the latter maintaining his dam at too great a height, whereby the water is set back; and the doctrine of contributory negligence does not apply. In an action by A., a mill-owner, against B., another mill-owner, lower down the same stream, for maintaining his dam at too great a height, whereby the water was set back, A. offered evidence tending to show that he had the right by deed to discharge the water from Ms mill through a raceway running through the latid of B. into the river below. B. contended that the raceway was a natural channel of the river, which divided at a point above A.’s mill, and formed an island, upon which B.’s mill was situated; that A.'s mill discharged the water into this natural stream on his own land; and that the rights of both parties were to be construed and determined accordingly. Held, that B. had no ground of exception to a ruling, based on Ms theory, that A. had the right to pass the water discharged from his premisa» into the river below. ¡fa exception lies to the refusal of a judge, at the close of his charge to the jury, to give an instruction which is covered by the instructions already given. In an action against a mill-owner to recover damages caused by his maintaining his dam at too great a height, whereby the water was set back, the jury returned a verdict with nominal damages for the plaintiff, and a direction that the defendant should reduce his dam to a certain level, which latter the judge ordered to be erased, and, several jurors dissenting from the verdict thus amended, directed them to retire, and, if they agreed, return a sealed verdict in the morning. The jury returned a verdict with substantial damages for the plaintiff. Held, that the defendant had no ground of exception.

Tort for the obstruction, from October 5,1865, to September 1, 1872, of the machinery of the plaintiffs’ mills, in Adams, by water set back by a dam built by the defendant’s intestate, Horatio N. Dean, lower on the stream. Writ dated March 8,1875. Trial in the Superior Court, before Dewey, J., who allowed a bill of exceptions in substance as follows : The plaintiffs put in evidence tending to show that their mills and dam were situated on land formerly owned in common by John Bucklin and Benjamin Read, and that, while they so owned it, they built a dam across the Hoosac River, and also erected mills, the raceway from which ran through the adjoining land of Read to the river below; that in 1784 Read conveyed one half of the mills, mill lot and dam, “ with the other appurtenances relative to the same,” to Benjamin Russell, who the same year became the owner of the other half; and from whom the plaintiffs derived their title by various mesne conveyances; that the adjoining lot, owned by Read, and through which the raceway ran, is that owned by the defendant’s intestate; that the raceway had, since 1784, been used in connection with the mills on their land; and that the dam erected by the defendant’s intestate was built over this raceway. The plaintiffs also put in evidence tending to show that those under whom they claimed had erected mills substantially on the site of their present mills, before the erection of any dam on the premises of the defendant’s intestate; and that the dam complained of was built by him in 1860; that, shortly after this dam was built, there was backwater on the plaintiffs’ wheels, as there had never before been; and the plaintiffs contended that it was caused by the dam. The defendant contended, and offered evidence tending to show, that the darn erected by his intestate was on a natural stream, a branch or channel of the Hoosac River, which divided at a point near the plaintiffs’ dam, forming an island, on which the mills of the defendant’s intestate were situated, and into which natural stream the water from the plaintiffs’ mills discharged, on their own land, and that the rights given by the deeds under which the plaintiffs claimed, and also the rights of the defendant, were to be construed and determined accordingly. It appeared that, after the erection of the mills by the plaintiffs’grantors, and the construction or adoption of their raceway about 1810, a mill and a dam, called the old fulling-mill dam, were erected on premises afterwards owned by the defendant’s intestate, and that the title to this mill and dam had been acquired by him before the erection of the dam complained of, which he built at a point on the stream about one and one half i ads below the old fulling-mill dam. • There was evidence tending to show that the old fulling-mill dam had a permanent planking which set back the water to the height of a certain overflow or waste-way some rods above; that, thus constructed and used, it did not set back the water upon or otherwise injure the mills above, as they were when it was erected, and that the dam complained of was of no greater height than the permanent planking and overflow or waste-way of the old fulling-mill dam; that the plaintiffs, since the erection of the fulling-mill dam, had materially lowered the stream or raceway at a point between their wheels and the fulling-mill dam, and had also lowered their wheel-pits and wheels; and that no period of twenty consecutive years had elapsed since the erection of the old fulling-mill dam, when the use of the plaintiffs’ wheels had not been obstructed by water set back by means of loose planks or flash-boards put on the old fulling-mill dam above its permanent planking, or on some other dam erected by the defendant’s intestate, or those under whom he claimed, on the premises owned by him when he built the dam complained oí. There was also evidence tending to show that the water, after leaving the plaintiffs’ wheels, had to pass through an archway above the premises of the defendant’s intestate, about fifty-six feet long and only fourteen feet wide, and that the quantity of water discharged from the plaintiffs’ wheels was so great that it could not be discharged through this archway without being therein at least two feet in depth, and without setting back water upon his wheels to at least that amount, when the wheels are in operation under the ordinary head and gates, and that if there was a sheer descent at the lower mouth of said archway, it would not reduce the depth of water in the arch, or on the plaintiffs’ wheels, and that, if the dam complained of should be entirely taken down, it would not lessen the depth of water in this archway, or on the plaintiffs’ wheels when in ordinary operation, and that, if the plaintiffs’ wheels had been hindered or obstructed by backwater, such backwater was caused wholly or in part by the archway being too narrow, and not sufficiently deepened to pass the volume of water discharged by the plaintiffs’ wheels when in use, without causing backwater therefrom. • There was no evidence that the defendant’s intestate, between October 5, 1865, and September 1, 1872, did any act whatever to his dam or waterworks, except to use them, as constructed in 1860, for the use of his tannery. The defendant asked the judge to instruct the jury that unless the defendant’s intestate had done something more than to simply use a dam erected before the time complained of in the plaintiffs’ writ, the cause of action would not survive against his administrator; but the judge declined so to rule. The defendant also asked the judge to instruct the jury that, if they believed that the backwater on the plaintiffs’ wheels was caused in part by the wrongful acts of the defendant’s intestate, and in part by the lowering of the plaintiffs’ wheel-pits, and in part by the narrowness of the archway, then they had contributed to their own injury, and could not recover against the defendant; but the judge declined so to instruct the jury. The judge then gave the jury the following instructions, among others not now necessary to state : “ The proprietor who first lawfully erects his dam across a stream to create a fall by means of which he may operate his mill has a right afterwards to maintain it against all other proprietors, both above and below him, and to this extent priority of occupancy gives priority of title. That is, the first occupant can flow back on the land of others above his dam, paying flowing damages, and he has a right to have the water pass off freely from his wheel, and the owner below has no right to flow back on his wheel. “ The defendant contends that the stream or channel, across which the dam was erected, was a branch of the Hoosac River that divided above the plaintiffs’ mills. Assuming this is so, the lower proprietor of a mill may maintain a dam, or raise it, so as to use all the unappropriated water-power of the stream ; he may do so, if it causes the water of his pond to set back into the raceway of the mill above, provided it does not obstruct the upper mill-owner’s wheel, or otherwise injure his mill. After each party has made an appropriation of the water-power he is entitled to, neither can make any changes which shall injuriously affect the rights of the other. The defendant contends that the backwater arises from other causes than the dam, and from causes for which he is not responsible, namely, that it is occasioned by the greater quantity of water which is discharged upon the plaintiffs’ wheels, which fills the wheel-pits and prevents a discharge as formerly, and causes it to set back, or not pass off freely; that the archway is not sufficient for the large discharge of water now passing off; that since the appropriation by the defendant’s intestate of the water rights below the plaintiffs’ dam, the plaintiffs have dug down and lowered their wheels so as to cause the water to set back on the present wheel, when it did not before. If the plaintiffs, in lowering their wheels, digging out their wheel-pit or raceway, or use of greater amount of water beyond what they were authorized by their deed from Read, and, as occupants of the first privilege, have caused the water to obstruct their wheels, or if others than the defendant’s intestate, as the builder of the archway, have done it, of course the defendant is not liable for the backwater arising from these causes. The plaintiffs’ wheels were not put in till four years ago, and they contend that there was backwater on the old one, and that the volume of water does not block up the archway; that the clearing out of the raceway has been of stones and dirt falling in. On all these points you will consider the conflicting testimony, and decide what are the facts. “ The defendant also contends that, if you should find that the dam caused the water to set back upon the wheels of the plaintiffs, his intestate did not raise his dam any higher than he had a right to, and his acts were not wrongful. The titles and rights to the tannery and fulling-mill dams had both vested in the defendant’s intestate. The fulling-mill title did not pass to Dean till about 1840. It was built about 1811, and the defendant contends that the fulling-mill dam was as high as the present dam, and that the height of the tannery dam was as high; that it had been maintained to that height for such a length of time, and under such circumstances as to give a right forever to keep it as high. In other words, that, by adverse use or possession of twenty years, his intestate and those under whom he claimed had acquired the right. It is important you should clearly understand what is necessary to the acquirement of a title or right in this way. The possession or user must be adverse, peaceable, uninterrupted, with a claim of right notorious and with the knowledge of the other party, and continued in this manner for twenty years; all these requisites must unite. If the use was permissive, or without a claim of a right, or if the right was claimed, but resisted or interrupted at any time in the twenty successive years, then no right is gained. If, by such an adverse user and possession as the law requires in order that a title or right shall be acquired in this mode, the defendant’s intestate had gained the right to maintain his dam as high as it now is, the plaintiffs cannot recover. But if he had not gained it, and, by maintaining it, he caused the water to set back on the plaintiffs’ wheels, placed no lower than the owner of the first wheel placed them, or that the plaintiffs, or those under whom they claim, have gained an adverse right in the same way in which, as already said, adverse rights above could be gained, then the defendant is liable for the damage caused by the backwater set back on the wheels by the dam. “ If you find that the backwater on the wheels of the plaintiffs is caused, a part of it, by the wrongful acts of the defendant’s intestate, and partly by other causes, as the lowering of the wheel or narrowness of arches, &c., or the increased volume of water discharged by the plaintiffs on the wheel, the defendant is . iable only for such portions of the damage as arose from the backwater which his intestate wrongfully caused, and you can only find for the plaintiffs for the amount which, upon the evidence, — the burden being upon the plaintiffs to satisfy you as to the amount, —you are satisfied arose from the wrongful acts of the defendant’s intestate, and not from any other cause.” After tnese instructions, and before the .jury retired, the defendant asked the judge to rule that if the old fulling-mill dam, at the height of its permanent boarding, did not set back water to the damage of the plaintiffs’ mills, or otherwise injure such mills, then the defendant’s intestate had a right to maintain a dam at that height; and if the jury find that the present dam of the defendant is at no greater height than the old fulling-mill dam with its permanent boarding, then the defendant’s intestate had a right so to maintain the present dam under the appropriation made by the erection of the old fulling-mill dam to that height. But the judge declined so to rule. The jury,,after a deliberation of several hours, returned into court, and, in answer to the inquiry by the clerk, whether they had agreed on a verdict, the foreman replied, “Yes,” and handed to the clerk a paper, on which was the following, signed by the foreman: “ The jury find for the plaintiffs, and assess damages in the sum of one dollar. The defendant shall reduce his dam to a level with the crest of the old tannery dam.” The clerk passed this paper to the judge, who stated to the foreman that the jury had no authority to return a verdict in that form, and directed him to erase in the verdict the following words : “ The defendant shall reduce his dam to a level with the crest of the old tannery dam.” The clerk then read to the jury the verdict as it was after this erasure, and, by the direction of the judge, inquired of the jurors if the verdict as read was their verdict; only three or four of the jurors assented, the others dissenting therefrom. The judge then stated to the jury that, as it appeared that they had not agreed on a verdict, they would retire for further consultation, which they did, the judge giving directions that, if they agreed, they might seal up their verdict and return it in the morning. The counsel of both parties were present and neither assented nor excepted to the order of the judge. The jury, after a further deliberation of several hours, agreed, and the next morning returned a sealed verdict for the plaintiffs, with damages assessed at $862.83, which verdict was duly affirmed by them and rendered. After the return of the jury into court the next morning, the counsel of the defendant, prior to the opening of the verdict, objected to the reception of any verdict, and reserved his right of exception to the same being received and affirmed. The defendant alleged exceptions to so much of the charge to the jury as related to the right of the plaintiffs to have the water discharged from their premises into the river below; to so much thereof as related to the causing of the alleged damage partly by the acts of the defendant’s intestate, and partly by other causes; to the refusals to rule as requested; and to the orders as to the verdict.