Brown v. Dean

• Decision Date: 18 October 1877
• Citation: 123 Mass. 254
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Levi L. Brown & others v. Ransom B. Dean, administrator

123 Mass. 254

Levi L. Brown & others v. Ransom B. Dean, administrator

Supreme Court of Massachusetts

October 18, 1877

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Berkshire. 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 3, 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 dam 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 rods 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 of.

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 backwater 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. ...