Taft v. Bridgeton Worsted Co.

• Decision Date: 13 October 1923
• Citation: 141 N.E. 119,246 Mass. 444
• Parties: TAFT et al. v. BRIDGETON WORSTED CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 444

141 N.E. 119

TAFT et al.

v.BRIDGETON WORSTED CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 13, 1923.

Exceptions from Superior Court, Worcester County; William A. Burns, Judge.

Action of tort by Ernest G. Taft and others against the Bridgeton Worsted Company for damages for destruction of harvestable ice. Verdict for plaintiffs for $34,637.68, and defendant brings exceptions. Exceptions sustained in part, and rehearing directed on question of damages.

Plaintiffs owned the land which embraced the part of an artificial pond on which the ice was formed, and defendant owned certain flowage rights. Defendant excepted to the refusal of certain instructions and to certain of the instructions as given, and also moved for a new trial on the ground that the damages were excessive. The motion was overruled.

Herbert Parker, of Boston, J. M. Thayer, of Worcester, and E. H. Hewitt, of Boston, for plaintiffs.

G. S. Taft and E. G. Norman, both of Worcester, for defendant.

PIERCE, J.

The allegations in the declarations in substance are:

That the plaintiffs are the owners of a parcel of land upon which there is a pond, ‘the flowage rights in which are claimed and alleged to be owned’ by the defendant; ‘that the said defendant maintains and uses exclusively in connection with and for the operation of its mill for the manufacture of textile fabrics a certain dam to maintain said flowage for the said operation of said mill’; that the cutting and harvesting of ice by them (the plaintiffs) ‘on or about January 13, 1919, and at any and all times during the season of ice formation, would not and did not, in any wise, impair or interfere with any lawful use of, or right to the waters of said pond in the defendant or belonging to it’; that ‘the proper, ordinary, reasonable and necessary use of the water in said pond and above said dam by the defendant for the purpose of operating its said mill on or about said 13th day of January, 1919, or at any period of ice formation, would not materially have injured the plaintiffs' in their use and enjoyment of their lawful rights to cut, harvest and sell the ice formed on said pond upon the premises of the plaintiffs'; that the defendant ‘well knowing the premises but maliciously contriving and intending to hinder and deprive the plaintiffs of the profit and advantage of cutting, harvesting and selling the ice formed upon the pond as aforesaid, and unjustly intending to aggrieve the plaintiffs, on or about the 13th day of January aforesaid, and at various times thereafter through its officers and employees or other agents, without reason or necessity and in total disregard of the rights of the plaintiffs, opened the sluiceway and gate of said dam and thereby caused the water to flow out of and away from said pond, during the ice season and forming on said pond during the ice season and about to be cut and harvested by the plaintiffs for use in their business as aforesaid, was settled and precipitated to the bottom of said pond, upon and into the mud, and rendered incapable of being cut and harvested and wholly unsalable and of no value to the plaintiffs'; that the ‘defendant * * * so carelessly, negligently, wastefully and improperly used and drew the water from said pond, and so carelessly, negligently, and unnecessarily opened and allowed to remain open the sluiceway and gate of said dam, that the water was caused to flow out of and away from said pond, whereby the ice formed and forming on said pond during the ice season and about to be cut and harvested by the plaintiffs for use in their business * * * was * * * rendered incapable of being cut and harvested.’

The plaintiffs introduced evidence consistent with and conformable to the allegations in the declaration and which the jury would be warranted in finding established facts which in substance and succinctly stated are as follows:

At the time of the injury complained of the defendant was the owner of land in Uxbridge, in the county of Worcester, through which the Rivulet stream flowed and upon which was textile mill with a dam. The plaintiffs owned land on said stream higher up and adjoining the land of the defendant. On the dividing line between the land of the plaintiffs and defendant was another dam, called the ‘reservoir dam.’

Until June 24, 1856, one Thayer owned the land subsequently acquired by the plaintiffs and the land subsequently acquired by the defendant which adjoined the land acquired by the predecessor in title of the plaintiffs. On that date Thayer conveyed the land acquired by the plaintiffs to one Burrill-

‘Always, however, reserving to the grantor his heirs and assigns said old dam called the Reservoir dam with the right to maintain the same forever at its present height, and to keep up and maintain a head of water to the height the same has at any time been kept up or maintained thereby, free from rent or charge for damages for flowage or for maintaining said dam.’

October 1, 1858:

‘Thayer conveyed his remaining land to Chandler Taft, a predecessor in title of the defendant, ‘including all the right, appurtenances and privileges reserved in my deed to Amos C. Burrill to the preservation and use of water at the reservoir which is on said Burrill's land.’'

Burrill, by deed dated May 26, 1864, conveyed to Chandler Taft:

‘The right and privilege to flow my real estate, which I purchased of Joseph Thayer, lying west of the land of said Chandler Taft and land sold by Joseph Thayer to Mr. Russell, and upon the Rivulet stream between the reservoir and the Rivulet dam, as high as the high-water mark designated by a drill hole in a rock situated in the Rivulet pond.’

January 14, 1871, Burrill conveyed to Richard Sayles et al. (purchasers from Chandler Taft):

‘The right and privilege to flow such of my land lying westerly and northerly of the land and water power of said Sayles & Taft on the Rivulet stream, so called, in said Uxbridge as may be in any way flowed by the dam of said Sayles & Taft, at its present height, being by measurement three feet higher than the drill hole in the large rock in the southerly part of the Rivulet pond, being the same drill hole referred to in the deed of Amos C. Burrill to Chandler Taft dated May [246 Mass. 448]26, 1864, and recorded in Registry of Deeds Book 685, page 241. And I hereby release all my claims against said Sayles & Taft or Richard Sayles for past, present or future damage for flowing any of my land by their dam at its present height three feet higher than said drill hole.’

These flowage rights were acquired by the defendant when it purchased its property in 1912. There was no natural pond on the plaintiffs' or defendant's land. The pond referred to in the declaration, as a pond upon the premises of the plaintiffs, was created wholly by said Reservoir and Rivulet dams, referred to in the deeds hereinbefore cited. The mill and dam upon the defendant's premises were built many years ago by a predecessor in title of the defendant. The mill had always been used by its owners for the manufacture of textile goods. The mill pond had supplied power, used in conjunction with other power, for the operation of the mill. The pond created by the flowage of the dams used in such operation covered between seventeen and eighteen acres of land, six acres immediately above the dam belonging to the defendant and its predecessors in the title and the remaining land belonging to the plaintiffs and their predecessors in tltle, except about 1 3/4 acres which belonged to one Bryant.

‘The plaintiffs built an icehouse upon their own land on the shore of said pond, which appliances for the cutting, harvesting and storing of ice therefrom, for the wholesale and retail ice business in which they were and had been ever since engaged. A spur railroad track, connecting with the New...