Cavanagh v. Durgin

• Decision Date: 22 June 1892
• Citation: 156 Mass. 466,31 N.E. 643
• Parties: CAVANAGH et al. v. DURGIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 466

31 N.E. 643

CAVANAGH et al. v. DURGIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1892

COUNSEL

Bartlett & Anderson, for plaintiffs.

H.N. Sheldon, for defendants.

OPINION

MORTON, J.

The acts of the defendants of which the plaintiffs complain were the building of a dam and the digging of a trench upon their premises. These acts were unlawful, and constituted a trespass, and the plaintiffs could at any time have removed the dam and filled up the trench. Cavanagh v. City of Boston, 139 Mass. 426, 1 N.E. 834. The defendants could not have entered to do either without being guilty of another trespass. The damages which the plaintiffs were entitled to recover, therefore, were the expenses of removing the dam and filling up the trench, and of restoring the premises to their former condition, and the loss of the use of them during the time which this would reasonably require. Loker v. Damon, 17 Pick. 284; Sibley v. Hoar, 4 Gray, 222; Holt v. Sargent, 15 Gray, 97; Miller v. Church, 7 Greenl. 51. These would be the direct and proximate results of the acts of the defendants. Instead, however, of removing the dam and filling up the trench, the plaintiffs sought to recover damages of the city of Boston for what the defendants had done. But this court held, in Cavanagh v. City of Boston, supra, that the city of Boston was not liable. The plaintiffs do not now contend that they are entitled to recover of the defendants damages as for a permanent obstruction of the premises, but contend that, having sought with reasonable promptness and in good faith a remedy for the wrong for which it turns out the defendants are liable, they should be allowed to recover of them, in addition to the expense of removing the dam and filling up the trench, for the loss of the use of the premises to the date of the writ in this case. But the fact that the plaintiffs mistook their remedy cannot enhance the damages for which the defendants are liable. The plaintiffs were presumed to know the law, and the delay was due to their own error, and not to any fault on the part of the defendants. We think, therefore, in accordance with the report, the entry must be, judgment on the verdict, with interest, and it is so ordered.