Isele v. Schwamb
| Decision Date | 05 July 1881 |
| Citation | 131 Mass. 337 |
| Parties | Ambrose W. Isele v. Theodore Schwamb |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Complaint filed December 27, 1879, under the Gen Sts. c. 149, for flowing with the defendant's dam a parcel of land in Arlington owned by the complainant since March 24, 1879. The case was submitted to the Superior Court and, after judgment for the respondent, to this court on appeal, on agreed facts, in substance as follows:
The respondent is now, and has been for fifteen years prior to the filing of the complaint, the owner of the mill and dam therein described; and during said fifteen years has by his dam caused the water to overflow the land now owned by the complainant.
On August 16, 1873, Charles F. Sippell and Hugo A. Sippell, who were the owners in fee of the premises described in this complaint, brought a complaint against the respondent for flowing these premises by the same dam now complained of. That complaint was duly entered in the Superior Court. While it was pending, on December 15, 1873, the complainants and the respondent entered into an agreement under seal, which provided that the complainants should make certain changes in the course of the stream on which the dam was situated, and that the respondent should put a bank wall by the side of it on the complainants' land, six inches above high-water mark, so that the complainants might fill their land above the water level; fixed the height at which the respondent could for the future maintain his dam, and released him from all damages, past and future, for maintaining it at the agreed height; and further provided that, when the respondent had performed the agreement on his part, the action pending should be entered "neither party." The respondent fully performed the agreement on his part; the entry of "neither party" was made in the pending action; and the respondent has not since kept his dam above the height fixed in the agreement.
On October 1, 1873, the Sippells conveyed said premises to the Arlington Five Cents Savings Bank, by a mortgage deed duly recorded before December 15, 1873. The above agreement was executed without the consent or knowledge of the mortgagee; and the respondent had no actual knowledge of the existence of the mortgage. The Sippells continued to occupy the premises until June 6, 1876, when the mortgagee entered for breach of condition and foreclosed the mortgage; and, under a power of sale therein, sold and conveyed the premises to Adam Lodge, who on the same day reconveyed them to the bank. On March 24, 1879, the bank, having made no claim against the defendant for flowage, conveyed the premises to the plaintiff, who was seised in fee of the premises at the date of filing his complaint. The alterations provided for and made under said agreement remain to the present time.
The respondent contends that said agreement is a bar to all claims for damages for flowing the land. The complainant contends that he is not bound by the agreement, as it was made subsequently to the mortgage, under the foreclosure of which he derives a title paramount to any interest in the premises acquired by the defendant.
If the action could not be maintained, judgment was to be entered for the respondent; if the agreement and the acts done under it constituted no defence, the case was to stand for trial.
Judgment affirmed.
J. H. Hardy, for the complainant.
J. G. Abbott, (S. A. B. Abbott with him,) for the respondent.
The claim of the complainant is based upon an erroneous view of what estate is conveyed by the mortgage deed of Charles F. and Hugo A. Sippell to the Arlington Five Cents Savings Bank, of October 1, 1873. A reference to the agreed facts discloses precisely what that deed conveyed. The respondent for some fifteen years prior to that deed had been the owner of a mill and mill-dam, which mill-dam had held back the waters of the stream across which it was built so as to overflow the land of the said Sippells. That dam was then, and during the whole time had been, of the same height at which it has since been maintained. The dam was lawfully erected, and has since been lawfully maintained under the statutes of the Commonwealth relating to mills. By force of law, therefore, the respondent became seised of the right to flowed by the land now owned by the complainant, as it would be flowed by the maintenance of the dam. That right was acquired by force of law, and the estate of the Sippells became subject to it. They could not destroy nor defeat nor impair it. It was a perpetual servitude, to which their land was subject. Heard v. Middlesex Canal, 5 Met. 81. Sudbury Meadows v. Middlesex Canal, 23 Pick. 36. Heard v. Talbot, 7 Gray 113. Chase v. Sutton Manuf. Co. 4 Cush. 152.
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Brady v. Blackinton
...he had. Nor was it a conveyance of the easement which the respondent had under the mill act, for it was not under seal. Isele v. Schwamb, 131 Mass. 337; Dyer v. Sanford, 9 Metc. (Mass.) 395. Nor does it appear that the complainant ever accepted the disclaimer, or in any way agreed to it, or......
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Briggs v. Stevens
...respect the case at bar stands on all fours with Walker v. Oxford Woolen Mfg. Co., 10 Metc. 203;Moore v. Boston, 8 Cush. 274;Isele v. Schwamb, 131 Mass. 337;Patten v. Fitz, 138 Mass. 456. [2] There is nothing in the second contention made by the plaintiff, namely, that the right to be compe......
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Briggs v. Treasurer and Receiver General.
...respect the case at bar stands on all fours with Walker v. Oxford Woollen Manuf. Co. 10 Met. 203, Moore v. Boston, 8 Cush. 274, Isele v. Schwamb, 131 Mass. 337, Patten v. Fitz, 138 Mass. 456 There is nothing in the second contention made by the plaintiff, namely, that the right to be compen......
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Isele v. Arlington Five Cents Sav. Bank
...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 of warranty, and the question presented is whether the payment and settlement of the ......