Mills v. Mason

• Decision Date: 22 May 1876
• Citation: 120 Mass. 244
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Atlanta Mills v. John N. Mason & others

120 Mass. 244

Atlanta Mills v. John N. Mason & others

Supreme Court of Massachusetts

May 22, 1876

Argued October 6, 1874.

Worcester. Bill in equity, filed October 27, 1871, against John N Mason, Thomas J. Harrington, Benjamin Flagg and George A Flagg, tenants in common of the estate known as the Millbury Cotton Mills. The bill alleged the following facts:

The plaintiff is and for six years past has been seised in fee of certain real estate situated in said Millbury, known as the Atlanta Mills estate. During this time it has had thereon a woollen mill and machinery carried by the water of the Blackstone River. The defendants own and occupy certain real estate in Millbury, situated below said premises on the same stream. The defendants have a right to maintain a dam on their said premises, and to flow back the water in the plaintiff's raceway so far as was flowed by the old dam in said raceway.

The defendants claim the right to maintain a dam across said river to a point much higher than their dam across said raceway, and have in fact, without right, so maintained a dam and set back the water of said stream upon the plaintiff's land, and thereby impeded its machinery and injured it in its business, and threaten to continue thereby to set back upon the plaintiff's land the waters of said stream, which will interrupt and destroy the plaintiff's business and cause it irreparable injury.

The bill prayed that the defendants be enjoined from setting back said waters upon the estate of the plaintiff, and that the court would ascertain and regulate the precise height, if any, to which the defendants might lawfully raise said waters, and cause an account to be taken of the damages hereby caused by the defendants, and for further relief.

The defendants in their answer set up a right to maintain their dam at its then height; and by a cross bill alleged certain injuries to the defendants by the diversion by the plaintiff of water to which the defendants were entitled.

The case was, at April term 1873, referred to a master "to find the facts in issue." On the coming in of the master's report, the defendants moved, before Devens, J that the case be sent to a jury to determine, upon an issue to be framed, the height at which the defendants were entitled to maintain their dam. The judge ruled that the defendants were not entitled to have this question submitted to a jury, and reserved the question of their right, and the questions arising on the report of the master, for the consideration of the full court.

By direction of the court, the case was first argued on the question of the right of the defendants to have the issue of fact submitted to a jury.

Defendants entitled to be restored by closing the trench cut by the plaintiff, and also to the damages as found by the master for its diversion.

G. F. Verry, for the plaintiff.

W. W. Rice, (G. A. Flagg with him,) for the defendants.

Gray, C. J., Devens, J. Colt & Morton, JJ., & Lord, JJ., absent.

OPINION

Gray; Devens

Gray, C. J.

Issues of fact in equity may either be tried by a master, and, upon exceptions to his report, by the court; or be tried by a jury. If a party intends to demand a trial by jury, he should ordinarily do so before the case is referred to a master.

The court, in its discretion, may doubtless order an issue to a jury even after the coming in of the master's report, if the evidence produced before the master appears to be conflicting, or his finding thereon is unsatisfactory, or the hearing before him has developed new questions of fact, or if, for other reasons, the court deems it fit that any issue in the cause should be tried by a jury.

But in the present case the issue as to the height of the dam was made by the pleadings, the case was referred to a master without objection by either party, the hearing before the master occupied a month, and the evidence is not reported, so that there is nothing from which the court can see that the master's conclusion is unsatisfactory, or that the issue can be better tried by a jury. Under these circumstances, to supersede the master's report and order a trial by jury, merely because a party who has been fully heard before the master is dissatisfied with the result, would be to grant an unreasonable indulgence to him, and to do great injustice to the other party.

Motion refused.

The case was then argued on the pleadings and the master's report, by the same counsel. The facts appear in the opinion.

Devens J.

The plaintiff and the defendants are owners of privileges upon the same stream, and the grievance complained of in the original bill is that the defendants, owning the lower privilege, maintain their dam at a greater height than they are properly entitled to do, thereby throwing water back upon the wheels of the plaintiff's mill. The parties each derive title from Asa Waters, who in 1833 owned both privileges.

The title of the plaintiff to the upper estate is derived, by mesne conveyances, from a deed of Asa Waters, of the date of 1837, of a portion thereof to Hale and Whipple, consisting of what were then known as the yellow, grinding and finishing shops, and the northwesterly part of the old forge shop. By this deed was conveyed "one half of the water power, and no more, belonging to what is called the Armory dam." The remainder of the upper estate, known as the Armory shop, with the other buildings used in connection therewith, which were operated by water from the Armory dam, was then owned by Asa and A. H. Waters, (one half thereof having been conveyed previously to A. H. Waters by Asa Waters,) and to this portion the plaintiff now has title derived from Asa and A. H. Waters.

At the time of making the deed to Hale and Whipple, Asa Waters owned the lower privilege, then known as the grist-mill privilege, and continued to be the owner thereof until his decease, after which, by authority of the Probate Court, the same was conveyed by A. H. Waters, as administrator of the estate of Asa Waters, in June, 1844, to Luke Harrington, and the title thus conveyed is now held by the defendants.

As it was contended that the defendants were entitled, as against the upper estate, to no greater rights than those which existed at the time of the making of the deed by Asa Waters to Hale and Whipple, it became, at the hearing before the master, a question of fact whether the cotton-mill dam as now maintained by them, which has been substituted for the grist-mill dam, was higher than the grist-mill dam then was, and whether it caused the water to set back upon the wheels of the upper estate more than the grist-mill dam formerly did, thereby impeding them. It was disputed whether the defendants were entitled to maintain their dam to the height indicated by a certain bolt, known as the Aikin bolt, or only to that indicated by the Cunningham bolt, which was five inches lower. It was found by the master that the latter indicated the height to which the dam could be maintained, and that as now maintained it was five inches higher than the grist-mill dam, thereby causing the water to set back and impede the action of the plaintiff's wheels, and that the water thus set back and impeding the plaintiff's wheels, as they now exist, would, to the same extent and on the same occasions, have set back on and impeded the wheels as they formerly existed, had the use of the original wheels continued.

This finding is not open to the objections suggested by the defendants, that it does not clearly appear thereby that, if the plaintiff's wheels and tail-races had remained as they were when the cotton-mill dam was built to its present height, it would not have set back water upon the plaintiff's wheels; and further, that while the plaintiff has wrongfully deepened a tail-race directly from the wheels into the river, it does not show that this tortious act does not contribute to the injury complained of. But the finding distinctly attributes the setting back of the water, and the impeding thereby of the plaintiff's wheels, to the additional height of the dam as now maintained, which is the grievance alleged by the plaintiff, and this is sufficient without expressly negativing other causes which the defendants contend may have produced it.

When the defendants purchased their estate, the dam was at its present height, and it is contended further by them that upon the facts shown in reference to that purchase, the plaintiff is now equitably estopped...