Middlesex Co. v. McCue

• Decision Date: 06 May 1889
• Citation: Middlesex Co. v. McCue, 149 Mass. 103, 21 N.E. 230 (Mass. 1889)
• Parties: MIDDLESEX CO. v. McCUE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 103

21 N.E. 230

MIDDLESEX CO. v. McCUE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 6, 1889

COUNSEL

B.F. Butler and Prentiss Webster, for plaintiff.

C Cowley, for defendant.

OPINION

HOLMES J.

This is a bill brought to restrain the defendant from filling up the plaintiff's mill-pond. The master reports that the defendant's land is on the slope of a hill running down to the pond, and that the only acts of the defendant tending to fill the pond have been those of cultivating and manuring his own soil in the ordinary way for the purpose of raising garden vegetables. The question is whether the defendant has a right to do these acts notwithstanding their effects upon the plaintiff's land and water rights. The respective rights and liabilities of adjoining land-owners cannot be determined in advance by a mathematical line, or a general formula; certainly not by the simple test of whether the obvious and necessary consequence of a given act by one is to damage the other. The fact that the damage is foreseen, or even intended, has nothing to do with the matter apart from statute. Some damage a man must put up with, however plainly his neighbor foresees it before bringing it to pass. Rideout v. Knox, (Mass.) 19 N.E. 390. Liability depends upon the nature of the act, and the kind and degree of harm done, considered in the light of expediency and usage. For certain kinds there is no liability, no matter what the extent of the harm. A man may lose half the value of his house by the obstruction of his view, and yet be without remedy. In other cases his right depends upon the degree of the damage, or rather of its cause. He must endure a certain amount of noise, smells, shaking, percolation, surface drainage, and so forth. If the amount is greater, he may be able to stop it, and to recover compensation. As in other matters of degree, a case which was near the line might be sent to a jury to determine what was reasonable. In a clear case it is the duty of the court to rule upon the parties' rights. The present case presents one of these questions of degree. If the plaintiff were complaining of offensive drainage from a vault it would be entitled to recover upon proof of the fact. Ball v Nye, 99 Mass. 582. If it complained that the surface drainage was made offensive by the nature of the substances spread by the defendant upon his land the case would be nearer the line, and the right to recover possibly might depend upon further...