Newton Rubber Works v. De Las Casas

• Decision Date: 07 January 1903
• Citation: 182 Mass. 436,65 N.E. 816
• Parties: NEWTON RUBBER WORKS v. DE LAS CASAS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 436

65 N.E. 816

NEWTON RUBBER WORKS

v.DE LAS CASAS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 7, 1903.

Appeal from superior court, Middlesex county.

Suit by the Newton Rubber Works against De Las Casas and others. From an order sustaining exceptions to a master's report, petitioner appeals. Decree affirmed in part.

C. C. Read and G. L. Clarke, for appellant.

Arthur W. De Goosh and Frederic B. Greenhalge, Asst. Attys. Gen., for respondents.

LORING, J.

This is a bill in which the plaintiff corporation sought to have a dam taken down which had been erected by the defendants so as to divert all the waters of Charles river from the east branch of it below Boylston street in Newton. The case is here on the appeal of the plaintiff from a decree of the superior court sustaining an exception taken by the defendants and overruling an exception taken by the plaintiff to the final report of the master. The master found that the waters of the Charles river had been wrongfully diverted from the east branch, and by the decree the defendants are directed to ‘remove the dam at the opening of the east branch, if it still exists, and all other obstructions within the limits of the ownership of said commonwealth which would prevent the free and natural flow of water down said east branch.’ The finding of the master which was excepted to by the defendants and held by the superior court to be erroneous was as follows: ‘I find and report, as in my original report, that the amount of damage which the petitioner has sustained to its property as such on account of the filling in of said east branch by the respondents is one dollar, and I also find that it is entitled to recover as damages from the respondents all sums which it has expended in maintaining its rights as against these respondents, and it is agreed by the parties that that amount is one thousand three hundred and forty-one and three hundredths (1,341.03) dollars, and I add that to the first amount named, making the sum of one thousand three hundred and forty-two and three hundredths (1,342.03) dollars. I do not do this upon the theory of a taxation of costs in any sense, but I do it upon the ground that the respondents have wrongfully injured the petitioner, and that a decree requiring the respondents to restore the property to the same condition physically as it was at the time of said wrongful act does not compensate the petitioner for the injury and damage it has...