Levi L. Brown Paper Co. v. Dean

• Decision Date: 18 October 1877
• Citation: 123 Mass. 267
• Parties: Levi L. Brown Paper Company v. Ransom B. Dean
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

123 Mass. 267

Levi L. Brown Paper Company v. Ransom B. Dean

Supreme Court of Massachusetts

October 18, 1877

Berkshire. Tort for the obstruction, from July 3, 1873, to March 3, 1875, of the machinery of the plaintiff's mills in Adams, by water set back by a dam built by Horatio N Dean, in 1860, lower down the stream. Writ dated March 3 1875. The case was tried in the Superior Court, before Dewey J., with the preceding case, who reported it for the consideration of this court in substance as follows:

The plaintiff corporation was duly organized on June 11, 1873, and the mill property and rights of the firm of Levi L. Brown and others were duly conveyed to the plaintiff. Horatio N. Dean died intestate on August 15, 1872; and after his decease the defendant, who was his son and copartner, continued to carry on the mill business in the same manner it had been previously carried on, until January 6, 1873, when the heirs of Horatio N. Dean conveyed the mill property to the widow and daughters of Horatio N., and after that date the business of the mills was carried on by the defendant on their account, and acting as their agent, he having a power of attorney from them, dated January 6, 1873, the material parts of which are printed in the margin. ^[*]

The defendant contended that on these facts he was not personally liable for any damages arising from maintaining the dam as alleged, and took the same exceptions as in the preceding case, excepting that relating to the survival of the action. The jury returned a verdict for the plaintiff. If the exceptions in the preceding case were sustained upon any other ground, except that no action for the alleged cause could be maintained against an administrator, then the verdict in this case was to be set aside, and the case stand for a new trial. If those exceptions were not sustained for any other cause, judgment was to be entered on the verdict in this case, unless the court should be of opinion that, upon the facts herein stated, this action could not be maintained against the defendant, in which case the verdict was to be set aside, and judgment entered for the defendant.

Judgment for the defendant.

H. L. Dawes, (M. Wilcox with him,) for the plaintiff, cited Bell v. Josselyn, 3 Gray 309; Hewett v. Swift, 3 Allen 420, 425; Wamesit Power Co. v. Allen 120 Mass. 352; Brown v. Lent, 20 Vt. 529; Washburn on Easements, 571.

T. P. Pingree & J. M. Barker, (F. O. Sayles with them,) for the defendant.

Colt J. Endicott & Lord, JJ., absent.

OPINION

Colt, J.

The injury to the plaintiff's mills was caused by the backwater of a dam on adjoining premises below. For such an injury, an action lies either against the one who erected the dam, or against subsequent owners or occupants who, after notice, continue to maintain the obstruction. Staple v. Spring, 10 Mass. 72. McDonough v. Gilman, 3 Allen 264, 267. Nichols v. Boston, 98 Mass. 39, 43.

In the case at bar, the dam complained of was erected by Horatio N Dean in his lifetime, while owner of the property, to supply water for the use of his tannery. The defendant had nothing to do with its construction. Before the time covered by the declaration in this case, Horatio N. died, and the defendant, having no title to the premises, became the agent of the present owners, and carried on the business at the tannery for their benefit under a power of attorney from them. During the time complained of, there was no change in the height or structure of the dam in question. It was a permanent structure, and the defendant had neither ownership, possession, nor such control as would authorize him to change or remove any such...