Hinckley v. Nickerson

• Decision Date: 26 February 1875
• Citation: 117 Mass. 213
• Parties: Nathaniel Hinckley v. Samuel Nickerson
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 213

Nathaniel Hinckley v. Samuel Nickerson

Supreme Court of Massachusetts

February 26, 1875

Branstable: Tort for depriving the plaintiff of the use of a stream of water for the operation of his grist-mill, and of his use of it for the purpose of flowing a cranberry bog adjacent to said stream. Trial in the Superior Court, before Dewey, J., at October term 1874, who, by consent of the parties, reported the case, before verdict, for the consideration of this court, in substance as follows:

The plaintiff was the owner of an ancient grist-mill, which he had for many years operated, and which was supplied by water from the pond and stream above it. He was also the owner of a cranberry bog above his mill and adjacent to the stream which he desired to flow in the cultivation of cranberries. The defendant, about ten years since, for the purpose of flowing his land, for the cultivation of cranberries, had erected on his own land a dam on the stream, above the dam of the plaintiff. The effect of the erecting of this dam by the defendant, the detaining of the water thereby, and using the same for the flowing of his cranberry meadow, was to prevent the water from flowing as it had formerly done into the stream and mill-pond of the plaintiff, during the time it was detained by the defendant's dam, and used for the flowing of his cranberry meadow, thereby affecting the operations of the plaintiff's grist-mill, and his having a supply of water for the flowing of his cranberry meadow. The time which the water was detained was about six days, twice during each year. The whole of the water of the stream, on which the plaintiff's mill was erected, was not thus detained, but only about one third of the water, that being the water that came ordinarily from the stream above the defendant's dam; the other portions of the plaintiff's water coming from other sources.

It was agreed that the water was not detained by the defendant for a longer time than was reasonably necessary for the purpose of flowing his meadow for the cultivation of cranberries. If upon these facts, the action can be maintained, the case is to be sent to an assessor to determine the amount of damages otherwise, judgment to be for the defendant.

Judgment for the defendant.

J. M. Day, for the plaintiff.

G. Marston, (H. P. Harriman with him,) for the defendant.

Wells, J. Ames & Endicott, JJ., absent.

OPINION

Wells, J.

One, through whose land a stream of water flows is not liable to an action at law for using the water in a reasonable manner for any purpose for which he has a legal right to use it.

Under the St. of 1866, c. 206, ^[*] the defendant had a legal right to maintain a dam for the purpose of flowing and irrigating his land for the cultivation of cranberries.

Neither the provision that "no such dam shall be erected to the injury of any mill...