Taft v. Bridgeton Worsted Co.
| Decision Date | 13 October 1923 |
| Citation | 246 Mass. 444 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ERNEST G. TAFT & another v. BRIDGETON WORSTED COMPANY. |
September 25, 1923.
Present: RUGG, C.
J., BRALEY, DE COURCY, PIERCE, & JENNEY, JJ.
Watercourse Riparian rights. Ice. Actionable Tort. Unlawful Interference. License. Practice, Civil, Variance. Damages, In tort.
The owner of a milldam on a nonnavigable stream, who, by a reservation in a deed from a common predecessor in title of himself and of the owner of land next above his on the stream, had been given a right to maintain the dam and the head of water and by a grant of the upper owner had been given "the right and privilege to flow" that land, has not an absolute right at will and at any time to draw the water out of a pond thus formed on the land of the upper riparian owner by means of his gates; and if, at a time when such upper riparian owner is harvesting ice on the pond on his land, the owner of the dam, not in the course of a reasonable use of the water but merely for the purpose of preventing the harvesting of such ice, draws off the water, ruins the ice and prevents its being harvested, he may be found to be liable to the upper riparian owner in an action of tort for damages so caused. Following Taft v.
Bridgeton Worsted Co. 237 Mass. 385 .
In the declaration in an action by the upper riparian owner to enforce such a right, the plaintiff alleged that there was on his property "a pond, the flowage rights in which are claimed and alleged to be owned by the" defendant.
Held, that there was no variance between such an allegation and the proof above described, that the defendant's rights rested upon express reservation and grants.
The plaintiff in the action above described was not entitled to recover damages for the loss of ice which he was intending to harvest from a portion of the pond over land of another riparian owner from whom he had received only a revocable license to harvest the ice, given him without consideration and not as an incident to an executory contract of sale.
TORT for unlawful interference with the harvesting of ice and for the destruction of harvestable ice upon a mill pond on land of the plaintiffs above a dam maintained by the defendant on its land. Writ dated June 30, 1919.
The action previously was before this court when, by a decision reported in 237 Mass. 385 , on an appeal by the plaintiffs from a judgment for the defendant following the sustaining of a demurrer to the declaration, the judgment was reversed.
There was a trial in the Superior Court before Burns, J. Material evidence and exceptions saved by the defendant are described in the opinion. The jury found for the plaintiffs in the sum of $34,637.68; and the defendant alleged exceptions.
G. S. Taft, (E.
G. Norman with him,) for the defendant.
H. Parker, (J.
M. Thayer with him,) for the plaintiffs.
The allegations in the declaration 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 anywise, 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 thirteenth 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 thirteenth 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, 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 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 unsaleable 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 a 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."
On 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 and another (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
26, 1864 & 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...
To continue reading
Request your trial