Bryant v. Bigelow Carpet Company

• Decision Date: 17 October 1881
• Citation: 131 Mass. 491
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles B. Bryant & another v. Bigelow Carpet Company & another

131 Mass. 491

Charles B. Bryant & another v. Bigelow Carpet Company & another

Supreme Court of Massachusetts

October 17, 1881

[Syllabus Material] [Syllabus Material]

Suffolk. Tort against the Bigelow Carpet Company and the Worcester and Nashua Railroad Company. The declaration, as amended, alleged that the plaintiffs were seised in fee and were in possession of a certain parcel of land, (described by metes and bounds,) in Clinton in the county of Worcester, together with the tannery, vats and other structures thereon; that the first-named defendant, in order to form a reservoir for its own use, constructed and maintained a dam across a small natural stream of water on land in Clinton, situated southerly of the plaintiffs' land, and not adjoining the same, whereby large quantities of water were dammed up and accumulated, which overflowed the land adjoining said natural stream, and flowed across other land into Mossy Pond, so called, in Clinton, which pond is situated westerly of the plaintiffs' land, and not adjoining the same; that the last-named defendant located and constructed a railroad through said reservoir and pond, between Mossy Pond and other ponds connected therewith on the one side, and the dam of the first-named defendant and Clinton Pond, so called, which was situated on the line of the brook across which said dam was built, on the other side; that all said ponds, by the raising of water by means of said dam, became one pond and continuous reservoir of water, which was used by the first-named defendant as a motive power in running its mills situated below said dam, and southerly of said premises of the plaintiffs and of the railroad of the last-named defendant; that said last-named defendant constructed its railroad through said reservoir with an embankment of solid filling, which was in effect a dam, except that two small culverts were inserted in the same, for the purpose of permitting the flow of water from said ponds on the northerly side of said railroad into the Clinton Pond, on the southerly side thereof, and thence easterly through the dam of the said first-named defendant to the mills thereof, situated below said dam; that the natural banks of said Mossy Pond on the easterly side thereof, which were southwesterly of the said premises of the plaintiffs, were not of sufficient height to hold the waters of said pond as raised by the waters of the said dam and by the railroad of said last-named defendant; that the said first-named defendant raised the said banks by building an embankment of earth thereon, and maintained said banks and artificial embankment thereon, so that the height thereof was about the same as the height of the said dam, and higher than the raceway of said dam over which the surplus water passed; that the said embankment was carelessly constructed and maintained by the first-named defendant in an improper manner, and was insufficient in height and strength; that the said culverts built by the last-named defendant were carelessly and improperly constructed, and were insufficient in size and improperly placed, so that they would not permit, and were insufficient to permit, the flow of water freely through them from the northerly side of said railroad to the southerly side thereof, which was the only direction said water could run or was intended to run in order to pass over the raceway of said dam; that both said defendants had knowingly and carelessly permitted said culverts for a long time therefore to be partially filled up with sand and stones and other material, and they had knowingly and carelessly permitted large deposits of sand, rocks and other material to accumulate, and stumps of trees to exist, at or near the entrance to said culverts on the northerly side of said road, and at or near the exit of said culverts on the southerly side of said road, and on the land of both defendants, whereby the culverts and the entrances and exits thereof had become choked, and in a great measure filled up, and utterly insufficient to permit the water to pass through said culverts in the direction as aforesaid, and the waters were used to accumulate on the northerly side of said railroad to a great height, and higher than the waters of said pond on the southerly side of said railroad; that in consequence of said dam of said carpet company and of said railroad, and the ill-placed and insufficient culverts and the choked-up condition thereof, as well as of the entrances and exits thereof as aforesaid, the waters in said pond on the northerly side of said railroad were, in a season of rain, on March 26, 1876, raised to a great height, and far higher than the raceway of said dam, and far higher than they would have been raised had said culverts been properly constructed and located, and had they with their approaches been kept free and clear with due care, and said waters were kept and maintained in said ponds by both said defendants negligently and at an improper and dangerous height, in consequence of which height of the said waters, and the careless, improper and insufficient manner in which said embankment had been constructed and maintained on the easterly side of said Mossy Pond, said waters then and there broke through the said embankment and washed out the said embankment as well as the natural bank thereunder, and flowed violently through the same and across other intervening land in a northeasterly direction, until they reached the said premises of the plaintiffs, where they washed out and away the buildings, vats and other structures standing on the plaintiffs' said land, and belonging to the said plaintiffs, and destroyed all said building, vats and structures, and washed out and away and destroyed large quantities of leather, hides, machinery, tools, fixtures and other personal property on said land belonging to said plaintiffs.

The defendants filed separate demurrers to the declaration, assigning as cause of demurrer that the declaration did not state any cause of action, either jointly with the other defendant or severally. Both demurrers were overruled.

The first-named defendant then filed an answer containing a general denial; and alleging that the damage sustained by the plaintiffs, as alleged in the declaration, was occasioned by an extraordinary flood or freshet, such as could not reasonably be expected to occur, and was not occasioned by any act or omission on the part of the defendant; that the defendant could not foresee said flood or freshet, and could not guard against the consequences of the same.

The last-named defendant filed an answer containing similar allegations. It also alleged that the defendant was a corporation duly established by law and authorized to construct a railroad from Worcester to the line of the State of New Hampshire; that the acts complained of were done under said authority, and were necessary to said construction; and that the defendant had the right to maintain the structures complained of.

By agreement of parties, the case was referred to William G. Russell, Charles Allen and Nathaniel J. Bradlee, Esquires, as auditors, to state the accounts between the parties and make report thereof to the court. They subsequently filed a report in favor of the plaintiffs against both defendants, in the sum of $ 78,123.31, with interest from March 26, 1876. The case was then heard by Morton, J., and reserved for the determination of the full court upon the questions of law arising upon the pleadings and the auditors' report. The findings of the auditors and the questions arising thereon appear in the opinion.

Judgment for the plaintiffs.

W. Gaston & J. C. Coombs, for the plaintiffs.

G. O. Shattuck & E. W. Hutchins, for the Bigelow Carpet Company.

E. R. Hoar & G. F. Hoar, (F. P. Goulding with them,) for the Worcester & Nashua Railroad Company.

Morton, J. Field, J. did not sit. Allen J., absent.

OPINION

Morton, J.

In considering this case we must assume as established the facts found by the auditors. In order to intelligently discuss the questions of law raised, it seems necessary to make a statement of the principal facts.

Prior to 1845, the Clinton Company, predecessors in title to the Bigelow Carpet Company, owned and occupied for manufacturing purposes a mill-site and dam upon South Meadow Brook, in Clinton, at the easterly end of a pond, flowed by the dam, known as Clinton Pond. Northerly of Clinton Pond was another pond called Mossy Pond, which was a self-contained pond without inlet or outlet, and not connected with the waters of said brook nor in any way affected by the flowage of the Clinton Company. In 1845 the Clinton Company formed its plans, and late in that year or early in 1846 began operations to increase its power and capacity for storage of water by raising its dam to such height as to raise the water of Clinton Pond about thirteen or fourteen feet above its then level. For this purpose the company acquired by sundry deeds from time to time the ownership of, or rights of flowage over, the various parcels of land which would be covered by the water so raised, and established a water level or flowage line, with reference to which its dam, waste-way and other works were designed and constructed. The level or line so fixed was at the height of the top of a certain beam in the waste-way which was then constructed, beneath which were flash-boards for retaining or drawing down the waters of the pond to this level, and it was not intended or designed in the construction of the works of the Clinton Company that the water should, even in case of freshets, exceed this line by more than a few inches.

The construction of the dam at the height thus fixed would cause the...