Moore v. Berlin Mills Co.

• Decision Date: 29 June 1907
• Citation: Moore v. Berlin Mills Co., 74 N.H. 305, 67 A. 578, 13 Ann. Cas. 217 (N.H. 1907)
• Parties: MOORE v. BERLIN MILLS CO.
• Court: New Hampshire Supreme Court

67 A. 578

74 N.H. 305

MOORE

v. BERLIN MILLS CO.

Supreme Court of New Hampshire. Coos.

June 29, 1907.

Transferred from Superior Court.

Action by Mary Moore against the Berlin Mills Company for injuries to plaintiff's land by the percolation of water from Dead river, across which defendant maintained a dam for a water power.Defendant pleaded the general issue, and after verdict in favor of plaintiffthe case was transferred to the Supreme Court on defendant's exception.Exception sustained.

The plaintiff's sole claim was for injuries occasioned by the percolation of water from the defendant's pond through land of the Grand Trunk Railway into her sand pit.Her land is bounded easterly by land of the railroad, is not contiguous to the defendant's pond, or to Dead river, and is from 97 to 183 feet distant therefrom.The defendant claimed that one question was whether it was making a reasonable use of the stream and its adjoining lands.The court did not submit that question to the jury, but instructed them that, if the defendant"sees fit to build a dam across that highway and stop the water in its natural flow, it would be liable then for all damages that occurred to anybody by reason of damming up and stopping the water in its natural flow."To this instruction the defendant excepted.

Jesse F. Libby and Edmund Sullivan, for plaintiff.Drew, Jordan, Shurtleff & Morris and Rich & Marble, for defendant

WALKER, J.The plaintiff seeks to recover damages in this action occasioned by water which, it is claimed, the defendant, by means of its dam across the river, causes to percolate through the ground and into the soil of the plaintiff.Between the river and the plaintiff's land the railroad owns a strip of land from 97 to 183 feet wide, through which the water percolates before it reaches the plaintiff's land.Hence it follows that the plaintiff cannot complain that the defendant's dam obstructs the natural flow of the river or interferes with her riparian rights.So far as she is concerned, the defendant must be deemed to be the rightful owner of flowage rights in the river; and those rights are property rights, in the enjoyment of which it is entitled to the same protection accorded to the owners of real estate generally.The retarded flow of the water in the river produces an artificial reservoir, which the defendant has the right to maintain and enjoy as its property; and the case does not materially differ from what it would be if the defendant had constructed a reservoir on its own land for some useful purpose, and water from it had by percolation finally reached the plaintiff's land and damaged her sand pit.

Upon this state of evidentiary facts, the court in substance instructed the jury, subject to the defendant's exception, that the defendant is liable for all damages caused by the percolating water, without regard to the question of the reasonableness of the defendant's use of the dam and the river.This was in effect telling the jury that, though the defendant could not in the exercise of ordinary prudence foresee the injury to the plaintiff resulting from the percolation of water from its reservoir, though it was guilty of no negligence with reference to the plaintiff's rights, and though it used ordinary care in the management of its property to avoid causing injury to others, still it was bound at its peril to keep the water held in its reservoir from reaching the plaintiff's land, located 100 feet from the river, through undiscovered subterranean passages.The doctrine of Fletcher v. Rylands, L. R.1 Exch. 265, 272, 3 H. L. Cas. 330, was thus applied without qualification; and the jury, upon finding that the water did percolate into the plaintiff's land in consequence of the swollen condition of the river, and that it caused damages to the plaintiff's land, were required as a matter of law to return a verdict for the plaintiff.But the doctrine of that case has been repudiated in this state.In Garland v. Towne, 55 N. H. 55, 57, 20 Am. Rep. 164, Ladd, J., apprehended: "It would be a surprise, not only to that large class of our people engaged in various manufacturing operations, who use water power to propel their machinery, and for that purpose maintain reservoirs, but to the legal profession, to hold that, in case of the breaking away of such reservoirs, there is no question of care or negligence to be tried, but that he who has thus accumulated water in a 'nonnatural' state on his own premises liable at all events as matter of law, in case is it escapes, for the damage caused by it."See, also, Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372;Carter v. Thurston, 58 N. H. 104, 107, 42 Am. Rep. 584;Davis v. Whitney, 68 N. H. 66, 44 Atl. 78;Gerrish v. Whitfield, 72 N. H. 222, 224, 55 Atl. 551.

The radical inapplicability of that doctrine to the modern state of industrial enterprise. even if it was suited to and originated in an ancient civilization, is pointed out in Brown v. Collins, supra, and is deemed to be a sufficient reason for its rejection as a present rule for regulating the rights and duties connected with the ownership and use of property.And the court say (53 N. H. 450): "When a defendant erroneously supposed, without any fault of either party, that he had a right to do what he did, and his act, done in the assertion of his supposed right, turns out to have been an interference with the plaintiff's property, he is generally held to have assumed the risk of maintaining the right which he asserted and the responsibility of the natural consequences of his voluntary act.But when there was no fault on his part, and the damage was not caused by his voluntary and intended act, or by an act of which he knew or ought to have known...