Rathke v. Gardner
| Decision Date | 09 January 1883 |
| Citation | 134 Mass. 14 |
| Parties | Henry A. Rathke v. G. C. Gardner |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions overruled.
C Delano, for the defendant.
S. T Field, for the plaintiff.
The statute provides that, "when the right to an easement or the title to real estate is in fact concerned in an action, and the judge before whom the action is tried certifies such to be the fact, the party finally prevailing therein shall recover his full costs, without regard to the amount of damages recovered." St. 1862, c. 36, § 1. Pub. Sts. c. 198, § 6. Ordinarily, the certificate of the presiding justice, that the right to an easement or the title to real estate is, or is not, in fact concerned in the action, will be conclusive. But when the presiding justice bases his finding of the fact upon a ruling upon a question of law, to which exception is taken, this ruling may be revised by this court.
The case at bar is an action of tort against the state manager of the Troy and Greenfield Railroad and the Hoosac Tunnel, in which the jury returned a verdict of one dollar. The declaration has two counts, but the bill of exceptions shows, we think, that there was no actual trespass which would sustain the second count, and that the verdict must have been rendered on the first count, for the acts of the defendant in diverting the surface water, and turning it upon the plaintiff's land. The evidence tended to show that the embankment of the railroad obstructed the flow of the surface water from the hills, and down a ravine; and that the defendant had dug a ditch on the upper side of the road, and had thereby conducted said water a distance of several rods, and discharged it, through a culvert under the road, upon land of the plaintiff, where it had not been accustomed to flow. The defendant claimed the right to do this, on the ground that it was necessary to the proper construction and maintenance of the railroad.
After the verdict, the question arose as to the right of the plaintiff to costs; and the defendant asked the court to rule that, "if the right claimed at the trial existed merely as incident to the right to construct and maintain a railroad, it would not constitute an easement." The court "declined so to rule, and ruled to the contrary," and thereupon made a certificate that a right to an easement was in fact concerned in the action.
No question is presented to us as to the liability of the defendant. Upon this matter, we must assume that correct instructions were given to the jury. The only question is whether the court erred in refusing the instruction requested.
As between the owners of contiguous estates, it is settled in this Commonwealth that the right of an owner of land to occupy and improve it as he may see fit, either by erecting structures or by changing the surface, is not restricted by the fact that such use of his own land will cause surface water to flow over adjoining lands in greater quantities, or in other directions, than they were accustomed to flow. If by this use, the adjoining land is damaged, it is damnum absque injuria. Gannon v. Hargadon, 10 Allen 106, and cases cited. This right exists in the owner by virtue of his dominion over his own soil, and not by virtue of any easement or servitude over the lower land. That this is so is clear from the fact that the adjoining owner may himself erect such structures or take such measures as he sees fit, on his own land, to divert...
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Rychlicki v. City of St. Louis
...water on his own land into a ditch, culvert or other artificial channel, and discharge it upon the lower land to its injury." Rathke v. Gardner, 134 Mass. 14. Other cases in same court and in other courts are to a like effect. White v. Chapin, 12 Allen 516; Martin v. Simpson, 6 Allen 103; P......
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Mutzel v. Northwestern Bell Telephone Co.
...highway. Cavanagh v. Block, 192 Mass. 63, 77 N.E. 1027 [6 L.R.A., N.S., 310]; Shipley v. Proctor, 177 Mass. 498, 59 N.E. 119; Rathke v. Gardner, 134 Mass. 14; Smith v. Faxon, 156 Mass. 589, 31 N.E. 687; Fitzpatrick v. Welch, 174 Mass. 486, 55 N.E. 178, 48 L.R.A. 278.' In the case before us ......
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...neighbor's land, he is liable to an action. White v. Chapin, 12 Allen, 516, 520; Curtis v. Railroad Co., 98 Mass. 428, 431; Rathke v. Gardner, 134 Mass. 14, 16; Jackman v. Arlington Mills, 137 Mass. 277, Cassidy v. Railroad Co., 141 Mass. 174, 179, 5 N.E. 142. And, when the defendant would ......
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O'brien v. Murphy
...land. Not being done for the improvement or repair of the way, these acts were correctly found to have been unlawful. Rathke v. Gardner, 134 Mass. 14, 16. While it is stated that the injury was inappreciable, it is found that the defendant claimed to have acted within his lawful rights, and......