Clinton Gaslight Co. v. Fuller

Decision Date06 January 1898
PartiesCLINTON GASLIGHT CO. v. FULLER et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Herbert Parker and F.E. Gunnison, for appellant.

W.A Gile and Jonathan Smith, for appellees.

OPINION

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 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, or that they have committed any wrong towards the plaintiff in rebuilding their dam, and flowing to the height originally granted. If the plaintiff has suffered harm in consequence of what the defendants have done, there is no remedy for it; and it must be presumed that the plaintiff built and has maintained its works with knowledge of the rights of the defendants and their predecessors in title. We discover nothing in the suit brought by the grantor of the defendants, or in its settlement, which operated as a bar to or release of the...

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1 cases
  • Clinton Gaslight Co. v. Fuller
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 6, 1898
    ...170 Mass. 8248 N.E. 1024CLINTON GASLIGHT CO.v.FULLER et al.Supreme Judicial Court of Massachusetts, Worcester.Jan. 6, 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,......

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