Parker v. American Woolen Co.

• Decision Date: 03 June 1913
• Citation: 102 N.E. 360,215 Mass. 176
• Parties: PARKER v. AMERICAN WOOLEN CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 176

102 N.E. 360

PARKER v. AMERICAN WOOLEN CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 3, 1913

SYLLABUS

Appeal by both parties from a final decree overruling exceptions of plaintiff and defendant to a master's report and ordering an injunction and the payment of damages to the plaintiff. The suit was brought to restrain the pollution by defendant of a stream called Beaver brook, in Dracut, and for damages. When the case was previously before the court an injunction was ordered and the case recommitted to a master for assessment of damages, and the master filed a second report fixing the damages. The requests for rulings which defendant requested the master to make and which are referred to in the opinion were as follows:

'6. That what constitutes a reasonable use of water in a stream in respect to the deposit of waste matter therein is a question of fact to be determined from all the circumstances of the case.

'7. That in determining whether a reasonable use of the water in a stream with respect to its pollution is being made the following circumstances should be considered, namely: The size and character of the stream, its condition, volume, and rapidity, and the density of the population along its banks; the use to which the stream has been, is, and can be applied; the state of improvement of the country in regard to mills and machinery, and the use of water as a propelling power; the general and established usages of the country in similar cases, and the usages and wants of the community; and the necessity or importance of the use claimed by the defendant, and the extent of the benefit to him as compared with the extent of the injury to the other party.'

In the Supreme Judicial Court, Jas. M. Morton, J., reported the case for the consideration of the full court.

COUNSEL

Trull & Wier, of Lowell, for plaintiff.

Sherman L. Whipple and Francis W. Kittredge, both of Boston (Alexander Lincoln, of Boston, of counsel), for defendant.

OPINION

SHELDON J.

When this case came on for hearing upon the master's second report and the exceptions thereto, the single justice ruled that it must be taken to have been settled by the former proceedings that the stream had been polluted so as to be unfit at the plaintiff's dam for any manufacturing purposes which required clean water, and that the pollution had been caused by the defendant. This was correct. It was the very point which was passed upon and decided when the case first came before us. Parker v. American Woolen Co., 195 Mass. 591, 81 N.E. 468, 10 L. R. A. (N. S.) 584. After that decision, the case was recommitted to the master for the assessment of the plaintiff's damages, and it is only matters bearing upon that question that now are open.

Many of the arguments that have been made for the defendant are upon questions of fact that were raised before the master. These no doubt were addressed to the master, and were given proper weight by him. Upon examination of the evidence reported, we do not find that any of his findings of fact that now are objected to were plainly wrong. Indeed they seem to have been well supported by the evidence before him. Accordingly we must accept them.

It could not have been ruled that the plaintiff's damages were to be measured solely by the diminution in the amount of the rental value of his premises, whether we take this to mean the loss of the rents and profits thereof or the diminution in the value of the use of his property during the period in question, due to the pollution caused by the defendant. These were elements to be considered in determining the amount of his damages, but they were not necessarily the sole matters to be looked at. One of the results of the defendant's wrongful acts, it has been found, was a depreciation of the value of the plaintiff's property. He would not obtain full justice unless he were compensated for this. His mill pond must be cleaned out, and the injurious deposits therein must be removed. Plainly he should recover the necessary expense of doing this. He is entitled to full compensation for all the injury done to him. So far as this included rental value, it must be the rental value of his premises in their condition at the time, but without the existing pollution of the water. Business profits have not been allowed to him. See as to these questions White v. Moseley, 8 Pick. 356, 359; Bradley v. Rea, 14 Allen, 20; Johnson v. Holyoke, 105 Mass. 80; Horton v. Cooley, 135 Mass. 589; French v. Connecticut River Lumber Co., 145 Mass. 261, 14 N.E. 113; Pye v. Faxon, 156 Mass. 471, 475, 31 N.E. 640; Allen v. Boston, 159 Mass. 324, 337, 34 N.E. 519, 38 Am. St. Rep. 423; Peak v. Frost, 162 Mass. 298, 38 N.E. 518; O'Brien v. Worcester, 172 Mass. 348, 52 N.E. 385; Atwood v. Boston Forwarding & Transfer Co., 185 Mass. 557, 71 N.E. 72; Weston v. Boston & Maine R. R., 190 Mass. 298, 76 N.E. 1050, 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330, 5 Ann. Cas. 825; Berry v. Ingalls, 199 Mass. 77, 85 N.E. 191; Phelps v. Berkshire St. Ry., 210 Mass. 49, 96 N.E. 128; Moore Spinning Co. v. Boston Ice Co., 210 Mass. 364, 370, 97 N.E. 62; Finley v. Hershey, 41 Iowa, 389.

Doubtless the defendant is not to be held for damages resulting merely from the independent acts of third persons. But it chose to discharge noxious substances into the stream and thereby so to pollute the water as to cause loss to the plaintiff. The water, as has been found, was already somewhat contaminated from other causes, so that it was not fit for drinking or domestic use. But this degree of pollution did not of itself harm the plaintiff. The fact that under other circumstances if for example the water as it came to the defendant had been pure, the pollution caused by the defendant might have been less injurious to the plaintiff, is not material. In this respect, the case is like that presented when an injury has been done by a defendant, either purposely or negligently, to a plaintiff, which would not appreciably have harmed a well and normally strong man but has more seriously...