Clapp v. City of Boston
| Decision Date | 07 September 1882 |
| Citation | 133 Mass. 367 |
| Parties | Frederick W. Clapp v. City of Boston |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Petition to the Superior Court for the assessment of damages by the taking by the respondent, under the St. of 1872, c. 177, of land of the petitioner, and of a certain right to take water from the land of another person. Trial before Gardner, J., who allowed a bill of exceptions, in substance as follows:
On October 26, 1852, John W. Olmstead conveyed to Albert Ballord, the right to maintain a dam, then built across a small brook running into Stony Brook, and also a well already sunk below the dam, and an hydraulic ram, by the means of which and of pipes water was forced and conveyed to the land of Ballord. Ballord afterwards conveyed his land and the easement annexed thereto to the petitioner.
Before July 28, 1876, the county commissioners of Middlesex County at the request of the respondent, laid out a highway across land adjoining the petitioner's, and through the place where the well and ram were situated, but below the dam. The petitioner, after the laying out of the highway, by the oral consent of one Lewis, removed the ram from the limits of the highway, and placed it upon the land of Lewis in a well sunk to receive it, at a point forty feet distant from where it formerly stood. Lewis derived his title to this land from said Olmstead.
On July 28, 1876, the respondent took, under the St. of 1872, c. 177 a portion of the land of the petitioner, and also lawfully flowed the land of Lewis where the ram and well were, so that the ram would not work, and the petitioner was thereby deprived of the use of the water at his house and barn, which stood upon land not taken by the respondent.
The judge, at the request of the respondent, ruled that the petitioner was not entitled to recover any damages for the destruction or interference with the right or easement in the water. The jury were also instructed to assess the petitioner's damages, for the taking of his land and for the taking of the water right, separately. A verdict was returned accordingly. The respondent paid the damages found for the land; and, by agreement of parties, if the petitioner was entitled to recover for the loss of his water right judgment was to be entered for him in a certain sum; otherwise, the exceptions to be overruled.
Exceptions overruled.
W Gaston & G. C. Travis, for the petitioner.
A. J. Bailey, for the respondent.
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