McGenness v. Adriatic Mills

• Citation: 116 Mass. 177
• Parties: Michael J. McGenness v. Adriatic Mills
• Decision Date: 24 October 1874
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 177

Michael J. McGenness v. Adriatic Mills

Supreme Court of Massachusetts

October 24, 1874

[Syllabus Material]

Worcester. Tort for a nuisance. Writ dated August 15, 1872. The plaintiff by an amended count to his declaration, which was the one relied on at the trial, alleged that from January 1 1867, to the date of the writ he was the owner of a certain parcel of land with a dwelling-house thereon, and that the defendant, a corporation, had "created, continued and maintained a nuisance on the land of the plaintiff, to wit: a box drain extending from the mill and premises of the defendant corporation, through which the defendant conveys to and upon the land of the plaintiff filthy and polluted water."

At the trial in the Superior Court, before Allen J., it appeared that a natural watercourse rising in springs on the defendant's premises flowed therefrom across a street by means of a culvert, thence between the plaintiff's lot and an adjoining lot for some distance, and thence away from the plaintiff's lot. The evidence tended to show that in the year 1866 the defendant put into the channel of the watercourse a covered box, extending from its premises to and across the street and following the natural channel for a certain distance between the plaintiff's lot and the adjoining lot, and then turning out of the natural channel upon the plaintiff's lot and extending a certain distance from said point of turning, and that the defendant caused the waters of the watercourse to flow through the box into and upon the plaintiff's land, that the defendant used the waters of the watercourse in its business, on its premises for dyeing and scouring and other purposes, thereby corrupting and rendering the same impure, and then returned it to the said channel and box before it left the premises of the corporation; that the covering of the box at one or more points on the plaintiff's land burst open by reason of being stopped up by waste from the defendant's mill, and the polluted waters gushed out upon and over a part of the plaintiff's lot, causing the nuisance complained of.

The plaintiff was allowed to put in the declarations of the superintendent of the defendant's mill with reference to the alleged nuisance, made in the spring of 1872 to a witness who testified in substance as follows: "I went to Gledhill, the superintendent, in the spring of 1872; asked what he was going to do with the nuisance. He said he had got to put the trough in some other way. I went again and he said, 'John, I am going to stop it.' He said, 'We are are going to take right hold of it.' He said he was going to clear it up. He said, 'I would n't have it round my place as it is around there for $ 500.' Said he had to wait the motion of the company." The defendant objected to the admission of this evidence and excepted thereto.

At the close of the evidence the defendant asked the judge to rule that there was no evidence to go to the jury in support of the declaration, and to direct a verdict for the defendant and also asked the judge to rule as follows: "1. If the stream or channel was a natural watercourse, the plaintiff cannot recover in this action. 2. If there was a natural watercourse running along by the plaintiff's land or on it, and the defendant entered on the plaintiff's land and put down a box or drain into which the waters of that watercourse were turned, the plaintiff in this action can recover only the damage to his land by putting down that drain, and cannot recover for polluting the waters of that watercourse, or for diverting them upon his land, or for any nuisance caused by polluting the waters of the watercourse. 3. If the defendant put a box into the natural watercourse for a certain distance, and then turned and extended the box out of the natural channel on to the plaintiff's land, and caused the waters of the natural watercourse to flow through the box upon the plaintiff's land after having polluted the water on its own premises, the plaintiff cannot recover in this case, although the purpose and object of the defendant in putting in and using the box were for a drain."

The judge declined to give any of these instructions, and instructed the jury as follows:

"If the defendant in 1866, without right, for the purpose of draining its premises, put the box on the plaintiff's land, and diverted into it the waters of a natural stream and so maintained and used it during the time alleged in the declaration, it may be liable...