Taft v. Bridgeton Worsted Co.

• Decision Date: 01 March 1921
• Citation: 237 Mass. 385,130 N.E. 48
• Parties: TAFT et al. v. BRIDGETON WORSTED CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 385

130 N.E. 48

TAFT et al.

v.BRIDGETON WORSTED CO.

Supreme Judicial Court of Massachusetts, Worcester.

March 1, 1921.

Appeal from Superior Court, Worcester County; William C. Wait, Judge.

Action of tort by Ernest G. Taft and Robert Taft, copartners under the firm name and style of E. G. and R. Taft, against the Bridgeton Worsted Company. From judgment for defendant entered pursuant to order sustaining defendant's demurrer to plaintiffs' declaration, plaintiffs appeal. Judgment reversed, defendant granted leave to answer, and case then ordered to stand for trial.Herbert Parker and Erastus H. Hewitt, both of Boston, Bullock & Thayer, of Worcester, and S. B. Taft, of Uxbridge, for appellants.

George S. Taft, of Worcester, for appellee.

RUGG, C. J.

This action of tort comes before us on the plaintiffs' appeal from an adverse judgment entered in consequence of sustaining the defendant's demurrer to the declaration. It the several counts of the declaration are general allegations in substance to the effect that the plaintiffs in January, 1919, were owners of land over which the defendant had flowage rights exercised by the maintenance of a dam for use in connection with its textile mill; that they have conducted for many years profitably the business of harvesting and selling the ice naturally forming on this pond in such manner as in no way to interfere with the flowage right of the defendant or to diminish the lawful use by the defendant of the waters thus impounded; and that with knowledge of these facts (count 1) the defendant, maliciously contriving to deprive the plaintiffs of their ice harvest and the gain to accrue therefrom, and unjustly intending to aggrieve them; and (count 2) that the defendant unlawfully, without reason, right or necessity, and (count 3) that the defendant negligently, wastefully, carelessly and unnecessarily opened and allowed to remain open the sluiceway and gate of the dam, thereby (as averred in all the counts) causing the water of the pond to flow out and away and the ice forming and to be formed on the pond of value to the plaintiffs to be destroyed and to become valueless.

There is no question of the right of the plaintiffs as owners of the land under the pond, and subject to the flowage right of the defendant, to harvest and sell whatever ice formed on the pond. Cummings v. Barrett, 10 Cush. 186;Paine v. Woods, 108 Mass. 160, 169, 173;Richards v. Gauffret, 145 Mass. 486, 14 N. E. 535.

The point to be decided is whether the nature of the right of flowage is such that the defendant as owner has a legal right to draw the water of the pond in the way and manner and with the intent alleged in the several counts of the declaration.

There are intimations by way of dicta in some of our decisions to the effect that the rights of an owner in the use of his land are not absolute but are limited so that acts arising from pure malignity and spite toward his neighbor, unmixed with a genuine purpose to improve his estate, may render him liable. Greenleaf v. Francis, 18 Pick. 117, 122;Holbrook v. Morrison, 214 Mass. 209, 211, 100 N. E. 1111, 44 L. R. A. (N. S.) 228, Ann. Cas. 1914B, 824. There are other decisions which throw doubt upon the proposition that in such case liability of the landowner can spring merely from the motive with which an act is done and which done with a benignant design would not involve the owner in any liability. The notion that the extent of the rights of a landowner can depend upon the motive with which he acted was said not to be well founded in the common law by Mr. Justice Holmes in Rideout v. Knox, 148 Mass. 368, who at page 372, 19 N. E. 390, at page 392 (2 L. R. A. 81, 12 Am. St. Rep. 560), conceded:

‘That to a large extent the power to use one's property malevolently, in any way which would be lawful for other ends, is an incident of property which cannot be taken away even by legislation. It may be assumed, that, under our Constitution, the Legislature would not have power to prohibit putting up or maintaining stores or houses with malicious intent, and thus to make a large part of the property of the commonwealth dependent upon what a jury might find to have been the past or to be the present motives of the owner.’ Walker v. Cronin, 107 Mass. 555, 563, 564;Brostrom v. Lauppe, 179 Mass. 315, 60 N. E. 785;Leonard v. Leonard, 181 Mass. 459, 63 N. E. 1068,92 Am. St. Rep. 426.

See instructive opinion in Falloon v. Schilling, 29 Kan. 292, 44 Am. Rep. 642, by Mr. Justice Brewer, later of the United States Supreme Court. See, also, article by Ames, 18 H. L. Rev. 411, 414-416, for collection of authorities on tort because of wrongful motive: ‘Collected Legal Papers' of Mr. Justice Holmes, pages 120 to 122; cases collected in notes 62 L. R. A. 673.

The case at bar stands upon a different footing. It does not depend upon that principle. For the purposes of this case it is not necessary to discuss it nor to determine its limitations. The defendant, although the owner of the dam, gate, sluiceways and mill, was not the owner of the water impounded in the pond. It had no right of exclusive appropriation and dominion over it. The only property interest in flowing water is usufructuary. Respecting such rights it was said in Stratton v. Mount Hermon Boys' School, 216 Mass. 83, at page 85, 103 N. E. 87 (49 L. R. A. [N. S.] 57, Ann. Cas. 1915A, 768), with ample citation of authorities:

‘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 consequence as follows from reasonable and just use by him. * * * 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. Often the amount and character of the flow may be modified to some extent 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...