Clinton Gaslight Co. v. Fuller

Decision Date06 January 1898
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 82
48 N.E. 1024

FULLER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 6, 1898.

Appeal from superior court, Worcester county.

Bill in equity by the Clinton Gaslight Company against Eben S. Fuller and another to restrain defendants from damming a stream, and for damages. From a decree for defendants, plaintiff appeals. Affirmed.

Herbert [170 Mass. 89]Parker and F.E. Gunnison, for appellant.

W.A. Gile and Jonathan Smith, for appellees.

[170 Mass. 90]MORTON, J.

By the deed from John Low to Henry Low, in 1823, the right of flowage as far as the Plant land was annexed to the premises conveyed, and, by mesne conveyances, passed to the defendants, unless it had been lost, released, or abandoned. Assuming that nothing else had happened to impair the right, the nonuser from the time of the washout, in 1876, to the time when the defendants built their dam, in 1895, did not extinguish it. Butterfield v. Reed, 160 Mass. 361, 35 N.E. 1128;Eddy v. Chace, 140 Mass 471, 5 N.E. 306;Barnes v. Lloyd, 112 Mass. 224.

But the plaintiff contends that the right

[48 N.E. 1025]

was limited to the channel of the stream then existing, and was lost by the change which was made in 1848. That change was acquiesced in by all parties, and the old channel presumably was closed up, and the new channel continued to be used till the washout, in 1876. We should hesitate to say that one using the new channel under such circumstances lost the right of flowage granted by deed, and thenceforward would have to depend on a right by prescription. But we do not think that the right was limited to the existing stream. We think that the words in the deed from John Low, in 1823, “with the privilege of following up the ditch to the bounds of land owned by Samuel Plant,” were not intended to limit the right of flowing to the ditch, but to fix the height to which the dam might be maintained and the land of the grantor flowed. According to this construction, the change in the channel in 1848, and again in 1876, become immaterial. There is nothing to show that the land flowed by the defendants exceeds the limits thus established...

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