Isele v. Arlington Five Cents Sav. Bank
| Decision Date | 07 May 1883 |
| Citation | 135 Mass. 142 |
| Parties | Ambrose W. Isele v. Arlington Five Cents Savings Bank |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Contract for breach of the covenants against incumbrances and of warranty in a deed of land from the defendant to the plaintiff. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon agreed facts, the material parts of which appear in the opinion.
Judgment affirmed.
J. W Hammond & J. H. Hardy, for the plaintiff.
C Robinson, Jr., (G. A. Blaney with him,) for the defendant.
OPINION
The defendant by warranty deed has conveyed to the plaintiff a certain tract of land, which is flowed or subject to be flowed in part by a mill-dam erected on the stream below. Previous to this conveyance, the former owner of the land had made such a settlement, by an agreement under seal duly recorded, with the owner of the mill, that all subsequent owners of the land then owned by him would be barred from suing for damages under the mill acts by reason of such flowage. Isele v. Schwamb, 131 Mass. 337. The defendant conveyed to the plaintiff with full covenants of warranty, and the question presented is whether the payment and settlement of the whole damages which then or thereafter might be caused by the flowage from the dam creates an incumbrance on the plaintiff's estate which constitutes a breach of the covenant against incumbrances or of the more general covenant of warranty.
The right which the owner of a mill has to flow the lands above by his dam has been generally spoken of as an easement in the land flowed, and that is deemed to be subject to a servitude. Isele v. Schwamb, ubi supra. In some cases it has been defined as a right in the nature, not of an easement in favor of the proprietor below, or of an authority in him to make any actual use of another's land, but of an authority to use his own land and water privilege to his own advantage, even if thereby the lands of another are flowed, for which he must pay suitable damages. Williams v. Nelson, 23 Pick. 141. Fitch v. Seymour, 9 Met. 462.
It may be, as suggested in the argument for the defendant, that there has been some difficulty in finding an adequate and definite phrase to express the respective characteristics or qualities of the two parcels of land, but we do not think this occasions embarrassment in the case at bar. The act of the mill owner in flowing the land above him is the exercise of a statutory right, and it is equally a statutory right that the owner for the time being of the land flowed shall have compensation therefor. The right to damages, when this statutory right of flowing is exercised, passes to each successive owner of the land, as incident to the...
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Stuhr v. Butterfield
...drains and water rights. Morgan v. Smith, 11 Ill. 194;Medler v. Hiatt, 8 Ind. 171;Harrington v. Bean, 89 Me. 470, 36 Atl. 986;Isele v. Arlington Bank, 135 Mass. 142;Clark v. Conroe, 38 Vt. 469. Even building restrictions have been held to be incumbrances. Hatcher v. Andrews, 5 Bush (Ky.) 56......
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...§§ 1, 4, 8-15, 20 (Williams v. Nelson, 23 Pick. 141, 147, 40 Mass. 141, 147; Craig v. Lewis, 110 Mass. 377, 379; Isele v. Arlington Five Cents Savings Bank, 135 Mass. 142, 144). Presumably also, the long continued use of the pond for ice cutting has given rise to a prescriptive right to mai......
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Riverbank Improvement Co. v. Chadwick
...the language has not been uniform and it seems to have been held otherwise when the damages are paid in gross, Isele v. Arlington Five Cents Savings Bank, 135 Mass. 142. Mr. Justice Holmes, in Otis Co. v. Ludlow Co., 201 U. S. 140, 153, 26 Sup. Ct. 353, 50 L. Ed. 696. That statement may be ......