Rourke v. Central Mass. Elec. Co.

• Decision Date: 18 October 1900
• Citation: 58 N.E. 470,177 Mass. 46
• Parties: ROURKE v. CENTRAL MASSACHUSETTS ELECTRIC CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 46

58 N.E. 470

ROURKE v. CENTRAL MASSACHUSETTS ELECTRIC CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 18, 1900

COUNSEL

J. B. Carroll and W. H. McClintock, for plaintiff.

C. L. & C. G. Gardner, for defendant.

OPINION

MORTON, J.

This is a complaint under the mill act for damages caused to land of the complainant by flowing and percolating water raised by the respondent's dam. The land damaged by the percolation and flowage consisted of from 3 to 5 acres, and was part of a tract of land lying between a highway on the south and the river, where the dam was, on the north, and comprising about 15 acres. The complainant was allowed, against the objection of the respondent, to introduce testimony showing how much the entire tract of 15 acres was damaged by the taking away of the part that was injured by percolation and flowage, or how much less the entire tract was worth by the taking away of the part of which the complainant was thus deprived. The only exception is to the admission of this testimony. We think that the evidence was admissible. Palmer Co. v. Ferrell, 17 Pick. 58, 63; Maynard v. City of Northampton, 157 Mass. 218, 31 N.E. 1062; Fales v. Inhabitants of Easthampton, 162 Mass. 423, 38 N.E. 1129. If the land taken or flowed constitutes a part of a larger tract, the effect of the taking or flowing upon the rest of the tract is a proper element of damage. Indeed, it would seem that the most correct method of estimating the damages in such a case would be to ascertain how much less the entire tract was worth by reason of the taking or flowing of a part. The owner of the dam has no just ground of complaint against such a rule, because he is not obliged to build his dam, and by building or raising his dam he must be deemed to take or flow the land in the situation and relation to other lands in which it is at the time when he builds or raises his dam. To limit the damages to the market value of the land actually taken or flowed would or might operate unjustly towards the landowner. Exceptions overruled.