Nye v. Swift

• Decision Date: 05 January 1906
• Citation: 76 N.E. 652,190 Mass. 143
• Parties: NYE v. SWIFT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 143

76 N.E. 652

NYE v. SWIFT et al.

Supreme Judicial Court of Massachusetts, Barnstable.

January 5, 1906

COUNSEL

Joseph H. Beale, Jr., Henry M. Hutchings, and Arthur M. Beale, for plaintiff.

Hiram P. Harriman, John L. Bates, and H. H. Armington, for defendants.

OPINION

SHELDON J.

This is an action of tort brought to recover damages for the flowing of the plaintiff's land by the defendants. At the trial in the superior court, the only evidence offered was the report of an auditor; and the only question which comes before us is whether upon the facts stated in that report the action can be maintained.

It appears from the report that in 1895 the defendants owned cranberry bogs upon each side of a stream, just above a pond into which the stream ran, and the plaintiff owned a bog immediately below one of the defendants' bogs situated on one side of the pond, and another bog on the other side of the pond, and further down. Below both of the plaintiff's bogs the water flowed from the pond through a narrow outlet into the ocean. The defendants' title to their bogs came partly through a warranty deed given by the plaintiff's father, which granted 'the privilege of raising the pond below sufficient for flowing their bog when made,' and partly through a warranty deed from the plaintiff which granted the privilege 'to raise the water and flow their bog.' Both of these deeds were given in 1881. The different bogs in question and the pond and stream are shown on the plan annexed.

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The defendants' bogs are 16 to 18 inches higher than the plaintiff's bog. In 1881 or 1882 the lower dike shown on the plan was erected across the outlet of the pond, on land now owned by the defendants; and it was admitted that the defendants had the right to flow their bogs by using this lower dike or dam, even though by such flowing the plaintiff's bog would be covered with water. It is necessary that cranberry bogs should be flowed in the spring or early summer to destroy insects called fire worms, which unless destroyed, are fatal to the growth of the cranberry. Until the early part of 1895 the defendants flowed their bogs by means of this lower dike or dam; but the defendants then erected the upper dike shown upon the plan, just above the plaintiff's first bog, and a pumping station upon the dike. Water was held upon the defendants' bog above this upper dike by means thereof until May 20, 1895 when the defendants pumped it by a steam pump into the pond below, so flowing the plaintiff's bog, where it was held by closing the gates at both dikes until June 7th next, following, when the water was pumped back upon the defendants' bogs above the upper dike, and, upon June 20th, the defendants again pumped the water from their bogs above the upper dike into the pond below, and again pumped the water back upon the defendants' bogs on the 23d day of said June, after which they opened the gates at both the upper and lower dikes, and allowed the water to flow unobstructed into the sea. The effect of these operations, though highly beneficial to the defendants' bogs, was to do great injury to the plaintiff's bog, and the material question involved in the case is whether the defendants, having under their deeds the right to raise the water to flow their bogs, had the right to adopt this method of accomplishing that result. It appeared that to raise the water sufficiently to flow the defendants' bog by using the lower dike alone without aid of the steam pump and the upper dike, it would have been necessary to keep the water on the plaintiff's bog a longer time than it was kept there by the plan adopted, and that the place where the plaintiff's bog was constructed was a part of the bed of the pond at the time of the giving of the deeds by the plaintiff and his father, in 1881, and had been drained, and so had become available for growing cranberries in 1891, only by reason of the defendants' having lowered the water of the pond by lowering the outlet at their lower dike. It also appeared that it is impossible to flow properly the defendants' bogs by means of the lower dike alone.

It will be observed that the plaintiff's complaint is not that the defendants have raised the water, and flowed his bog for the purpose of flowing their bog; for this it is conceded that the defendants have the right...