Tyler v. Town of Hudson
| Decision Date | 27 November 1888 |
| Citation | 18 N.E. 582,147 Mass. 609 |
| Parties | TYLER et al. v. TOWN OF HUDSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.P. Goulding, for petitioners.
J.T Joslin, for defendant.
In the year 1867 one Sawyer, the owner of a tract of land containing about 80 acres, bounding on a great pond called "Gates' Pond," granted to Francis Brigham, his heirs and assigns, "the right and privilege forever to flow and cover with water four acres and forty-eight rods of my land bordering on Gates' pond,"--reference being made to a plan for a more particular description of the land "and the said Brigham has the right to raise the water in said pond to a bolt in a rock situated on the northerly margin of that part of said land which has formerly been used as a meadow." Brigham and his devisees, until the taking by these respondents, maintained a dam, and raised the water of the pond; but whether so as to flow the whole of the four acres and forty-eight rods, or whether as high as the bolt in the rock, does not appear, nor does it appear whether water as high as the bolt would flow the whole of the land. The defendants acquired the title of said Sawyer to the whole tract, subject to the right of flowage granted to Brigham. Statute of 1883, c. 149, authorized the town of Hudson to "take, by purchase or otherwise, and hold, the waters of Gates' pond, *** and the waters which flow into and from the same, together with any water-rights connected therewith; and also all lands, rights of way, and easements, necessary for holding and preserving the water, and for conveying the same to any part of said town of Hudson;" with authority to erect dams, etc. Under this authority the town of Hudson took the waters of Gates' pond, and the waters which flow into and from the same, with any water-rights connected therewith; "and also any and all lands, rights of flowage," etc., and also the rights and privileges which had been granted to Francis Brigham by sundry deeds named, among them the aforesaid deed of Sawyer; "also the lands adjacent to said Gates' pond, and adjoining the same, (other than the premises described in the foregoing deeds,) owned by the parties hereinafter named, and of the area hereinafter specified, as follows: *** Of land of J.D. and M.R. Tyler, two acres and ninety-seven and one-half rods." Land is thus taken of eight owners, and a plan is referred to. On the petition of J.D. and M.R. Tyler, the damages occasioned by the taking of their land was assessed by the county commissioners, and this proceeding is on the petition of the town of Hudson to the superior court to have the damages assessed by a jury.
The first question is whether the court erred in admitting evidence of damage to the four acres and forty-eight rods of land which were subject to the easement granted to Brigham. The original petitioners owned the fee of the land, and had the right to any use of it not inconsistent with the easement as it was exercised. It was part of the whole tract owned by them, and it did not appear that they had not some beneficial use of it in connection with the residue of the land; and the court could not say, as matter of law,...
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