Sturtevant v. Ford

Decision Date24 September 1932
Citation182 N.E. 560,280 Mass. 303
PartiesSTURTEVANT v. FORD et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Middlesex County; Qua, Judge.

Suit by Joseph L. Sturtevant against Henry Ford and others. From interlocutory and final decrees for plaintiff, defendants appeal.

First interlocutory decree affirmed, and subsequent interlocutory decree and final decree reversed.Hubert C. Thompson and Herbert Parker, both of Boston, for appellants.

C. H. Baldwin, of Boston, for appellee.

RUGG, C. J.

The plaintiff seeks by this suit in equity to restrain the defendants from maintaining certain dams so as to deprive him as a lower riparian proprietor of the natural flow of water in Hop Brook, to recover damages sustained by him through their alleged unreasonable interference with the waters of the brook, and for other relief. The real estate and water rights involved are in the town of Sudbury. The watershed of the brook comprises about four square miles. The principles of law governing the respective rights of upper and lower proprietors upon a stream are stated with citation of supporting authorities in Stratton v. Mount Hermon Boys' School, 216 Mass. 83 at pages 84, 85,103 N. E. 87, 49 L. R. A. (N. S.) 57, Ann. Cas. 1915A, 768: ‘The common-law rights and obligations of riparian owners upon streams are not open to doubt. Although the right to flowing water is incident to the title to land, there is no right of property in such water in the sense that it can be the subject of exclusive appropriation and dominion. The only property interest in it is usufructuary. The right of each riparian owner is to have the natural flow of the stream come to his land and to make a reasonable and just use of it as it flows through his land, subject, however, to the like right of each upper proprietor to make a reasonable and just use of the water on its course through his land and subject further to the obligation to lower proprietors to permit the water to pass away from his estate unaffected except by such consequences as follow from reasonable and just use by him. This general principle, simple in statement, often gives rise to difficulties in its application. What is a reasonable and just use of flowing water is dependent upon the state of civilization, the development of the mechanical and engineering art, climatic conditions, the customs of the neighborhood and the other varying circumstances of each case. To some extent often the amount and character of the flow may be modified by such use, for which, even though injurious to other proprietors, no action lies. A stream may be so small that its entire flow may be abstracted by the ordinary domestic uses of a farmer. Its bed may be so steep that its rational utilization for the generation of power requires its impounding in numerous reservoirs. But whatever the condition, each riparian owner must conduct his operations reasonably in view of like rights and obligations in the owners above and below him. The right of no one is absolute but is qualified by the existence of the same right in all others similarly situated. The use of the water flowing in a stream is common to all riparian owners and each must exercise this common right so as not essentially to interfere with an equally beneficial enjoyment of the common right by his fellow riparian owners. Such use may result in some diminution, obstruction or change in the natural flow of the stream, but such interference cannot exceed that which arises from reasonable conduct in the light of all circumstances, having due regard to the exercise of the common right by other riparian owners.’ That decision held further that such reasonable use by a riparian proprietor must be confined to the watershed in question unless the diversion is so inconsiderable in amount as not to cause a present or potential injury to the use of the stream by the lower riparian proprietor. One of the essential rights of a riparian owner is that he cannot be held responsible for injurious consequences resulting to others if he raises and uses a water power adapted and appropriate to the size and capacity of the stream and the quantity of water usually flowing in it. The construction of dams and the other incidents of a water driven mill necessarily change the natural flow of a stream and derange to some extent the manner and time of flow of the current as it otherwise would come to the lower riparian owner. Springfield v. Harris, 4 Allen, 494, 496, 81 Am. Dec. 715;Thurber v. Martin, 2 Gray, 394, 61 Am. Dec. 468;Gould v. Boston Duck Co., 13 Gray, 442, 451. Such reasonable uses are not confined to the utilization of the water for power but extend to whatever purposes may be found to be just and reasonable. Wood v. Edes, 2 Allen, 578. See Turner v. Nye, 154 Mass. 579, 28 N. E. 1048,14 L. R. A. 487,Nye v. Swift, 190 Mass. 143, 76 N. E. 652.

The case was referred to a master to hear the evidence and to find and report the facts. The evidence was not reported. Under the familiar rule these findings of fact must be accepted as true unless plainly wrong, mutually inconsistent or contradictory or vitiated in view of the controlling principles of law. The original and supplemental reports of the master are somewhat voluminous. A brief summary of the findings will suffice.

The plaintiff, after a long search for a very special kind of property susceptible of adaptation as an unusual country place to his peculiar uses and sensibilities and possessin features attractive to birds and waterfowl, bought, beginning in 1922, four parcels of wild land aggregating about six acres in area, and spent several years in developing the tract for his particular purpose at a total cost of about $40,000. The brook was the central feature of his plan and the use made by him of it, intended to gratify his own taste, was legal and reasonable. The defendants Ford (hereafter called the defendants) in 1923 bought the historic Wayside Inn estate and by subsequent purchases have acquired in all about three thousand acres. They are engaged in a development of a semi-philanthropic nature which is of substantial public interest and benefit. They have installed in the Wayside Inn a great variety of antique furniture, furnishings, pictures and documents. The place is visited by many thousands of people annually. They have also established an elementary school and a trade school for boys. Upon the land of the defendants are several artificial ponds. The upper one known as Hagar's Pond appears to have been long in existence, not to be used for any practical purpose and to be incapable of being utilized as a storage reservoir because not furnished with any apparatus for drawing its water. The plaintiff makes no charge against the defendants with respect to that pond and it would drop out of the case but for effect upon it by the final decree. The one next lower on the stream, known as Bright's Pond, formerly afforded power for a grist mill. Its level has been raised about two feet by the defendants who have built a new grist mill operated by the water power thus made available. The present use of this mill is for demonstration in development of water power and for illustrating the methods of grinding and the variety of product of a grist mill of a century ago and not as a profitable commercial adventure. This use is partly for public education, partly to show what can be done with small New England streams and partly to provide the table of the Wayside Inn with its products. The master found that the raising of the level of this pond was not unreasonable in order to make the power of the brook available, that the use of its water was reasonable and that, if this were the only obstruction to the flow of the brook, the plaintiff's premises would be ‘supplied with very nearly the normal quantity of flow.’ This finding means in the light of the whole record and all the other findings that the plaintiff thereby has been and is caused no legal damage by that dam and the use of the water thereby raised. The defendants have constructed a small reservoir flowing less than two and one-half acres on Stoneleigh Brook, a small confluent of Hop Brook, fed by springs and having its source and entire course on their land, for the purpose of using the impounded waters for drinking, sanitation and fire protection at the buildings on the Wayside Inn estate. The master finds that this proposed use is reasonable, that the little brook makes ‘a small contribution to Hop Brook and is of no great importance either one way or the other.’ The defendants about a quarter of a mile upstream from the land of the plaintiff constructed beginning in 1927 a dam on the brook whereby the Carding Mill Pond flowing about forty-two acres was created and have there erected a building of considerable size used chiefly for instruction of boys in useful trades. The area thus flowed was formerly swamp and marsh. The master found that the defendants have constantly intended to construct and erect a water wheel to be used at this dam for furnishing power for the operation of some kind of machinery in the building. It was found that the depth of the water at the dam was approximately five and one-half feet and that the average net available horse-power developed was slightly in excess of eight. He found also that by reason of the nature of the earth dividing the watershed of this pond from an adjacent watershed of lower elevation situated but a short distance from the pond there has been substantial loss of water to the brook as it enters the plaintiff's land. From this pond ‘there is a very considerable loss by way of evaporation and a very appreciable loss by way of seepage’ to the neighboring watershed lower in elevation. The flow of the brook through the premises of the plaintiff ‘at no season of the year is more than approximately 50% of what was its natural flow during any corresponding...

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