Drew v. Inhabitants of Westfield

• Decision Date: 27 June 1878
• Citation: 124 Mass. 461
• Parties: Absalom Drew v. Inhabitants of Westfield
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 461

Absalom Drew v. Inhabitants of Westfield

Supreme Court of Massachusetts

June 27, 1878

Argued September 26, 1877

Hampden. Tort for injuries to the plaintiff's mill property by the alleged negligent acts of the defendant.

At the trial in the Superior Court, before Brigham, C. J., the evidence tended to show that in January, 1874, there was in that part of Westfield called Little River a certain highway which had existed from time immemorial, and had for the same period served in part as a dam for the pond, by the waters of which the plaintiff's mills were operated; that up to January, 1870, the highway had been solidly constructed, and without any culvert or waterway, except under a bridge which formed part of said highway; that the water of the pond, at times of freshets, had sometimes flowed over the highway at a depression therein, and sometimes occasioned serious damage to the highway; that in January, 1870, a culvert was placed in the highway, under the supervision of the then selectmen of the defendant town, so arranged that by raising the gate thereof the water would run from the pond; and that at this time the mill property was owned by one Stebbins. There was contradictory evidence as to how, and for what purpose and by whom the culvert was put in, whether by Stebbins, by the selectmen without authority, or by the defendant, and by whom it was to be maintained, or whether it was to be maintained by any one. There was evidence tending to show that the use of the culvert had been abandoned before the plaintiff bought the mill property, and that it was practically useless; but there was also evidence tending to show that the culvert was used after the sale of the mill property, and that the gate was raised at the time the culvert was closed in January 1874, though at no time for the purposes of relieving dam or mills from the water to prevent injury thereto.

It was admitted or proved that in June, 1873, after the death of Stebbins, the mill property was duly sold by auction by his administratrix; that the plaintiff bid off the same, and went into possession thereof immediately, but no deeds of conveyance were made until March 28, 1874, when one was made in the usual form of an administrator's deed, reciting the sale in June, 1873, by leave of the Probate Court, which deed was put in evidence; and that prior to the auction sale the plaintiff had no interest of any kind in the mill property.

There was evidence tending to show that in January, 1874, the highway at the culvert was out of repair, by reason of the water from the pond forcing its way under and at the sides of the culvert, and the defendant made repairs thereon, and, in making such repairs, and as part thereof, closed the culvert so that thereafter it was not capable of being used; that all these acts were proper and suitable for the repair and preservation of...