Smith v. Langewald

The owner of land, having a right to flow, by means of a dam, adjoining land which is used for pasturage purposes, is not entitled to remove an ordinary farm fence erected on the servient estate, while he is not exercising his right of

Tort • for breaking and entering the plaintiff’s close in Chicopee, and tearing down a fence thereon. Trial in the Superior Court, without a jury, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows: The plaintiff’s premises consist of a pasture, used by him for pasturage purposes, which was part of a farm to which he obtained his title by inheritance from his father, Luther Smith, and by purchase from the other heirs at law of his father, in 1858. Luther Smith obtained his title to said farm in 1837, by a deed to him from Sylvester Taylor, whose title to the same was obtained in 1836, by a deed from Bleazer Wright. The defendant obtained his title to land adjacent to the plaintiff’s pasture, in 1869, by sundry mesne conveyances from Stephen C. Bemis, who, in 1828, by a deed from said Wright, acquired title to the land now owned by the defendant, and adjoining the plaintiff’s pasture. The deed of Wright to Bemis contained the following provision: “ Also the right and privilege of flowing any of our lands, which have heretofore at any time been flowed, by reason of a dam having been erected across the above-mentioned brook, the Willimansett, near where there was a sawmill erected, together with the privilege of erecting, or repairing, and keeping up a dam, and of raising and keeping the water to the height aforesaid, and of using said water for the purpose of propelling any kind of machinery which he, the said grantee, may erect, or cause to be erected, on the premises.” The dam above mentioned was. used for the purpose of propelling machinery until 1872, and the flowage caused thereby extended to the distance of sixty rods above the dam, and to forty rods above the southwesterly boundary of the plaintiff’s pasture. In 1872 the dam was carried away, and in 1882 it was partially rebuilt, but not so as to cause flowage of any part of the plaintiff’s pasture. The fence, the removal of which is complained of, had been maintained along the southerly and southwesterly boundaries of the plaintiff’s pasture, and to Willimansett Brook, since 1872. Said fence consisted in part of a post-and-three-rail fence, and in part of a stake-withe-and-two-rail fence; and of the former, in 1884, the defendant removed about five rods in length, and of the latter about fifteen rods in length. ■All of the fence thus removed was on land which, prior to 1872, was flowed by means of said dam. In 1848, when the defendant’s premises were owned by Willis Phelps, the dam thereon was carried away, but immediately afterwards Phelps rebuilt the dam to a greater height than that of the previous dam; and there was evidence tending to prove that, subsequently to such rebuilding, Phelps paid to the plaintiff’s father, on four consecutive years, for flowage of two acres of land now within the plaintiff’s pasture, and that, on June 1, 1867, payment was made by one Dimmock, then owning the defendant’s premises, to the plaintiff, of the sum of $21.87, for four years’ flowage of the plaintiff’s pasturage. The land and flowage to which said payments applied were not so definitely and specifically in evidence that the judge could find the location and limits thereof. The judge found that the plaintiff’s fence, removed by the defendant, was on land flowed by the dam existing on the defendant’s premises in 1828, to which ,the provisions of the deed of Wright to Bemis applied. Upon these facts, the judge ruled that the defendant had, at the time of removing the plaintiff’s fence, a right of flowage over the land upon which the fence stood, but that, in assertion and furtherance of said right, the defendant could not lawfully remove the fence; found for the plaintiff in the sum of five dollars; and ordered judgment accordingly. The defendant alleged exceptions.