Urch v. City of Portsmouth

• Decision Date: 30 July 1897
• Citation: 69 N.H. 162,44 A. 112
• Parties: URCH v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

44 A. 112

69 N.H. 162

URCH

v. CITY OF PORTSMOUTH.

Supreme Court of New Hampshire. Rockingham.

July 30, 1897.

Action by David Urch against the city of Portsmouth. Judgment for defendant.

Case, for injury to a mill privilege. Facts found by the court. The rise of tides causes the water to flow back from the Piscataqua river, through a creek, into a depression in the land located in the easterly part of Portsmouth, forming what is known as the "South Mill Pond." For over 200 years a tide mil' has been maintained and operated just below a highway bridge at the foot of the pond. In 1878, noisome vapors and gases arose from the bed of the pond when it was exposed by the falling of the tide. To 'remedy this evil, the defendants, on September 1, 1878, purchased the mill, with whatever privileges were appurtenant thereto, and, after removing the mill and dam, placed new tide gates further up the stream, by which the city has since controlled the water in the pond, and, to some extent, remedied the evil. In 1891 the city councils of Portsmouth authorized a committee to sell and convey "any lands or flats owned by the city lying directly east of the north and south abutments of the South Mill Bridge between the property of Charles N. Osgood and that of the late James W. Nutter, the city reserving the full width of the present water way under said bridge over said flats as a tide way." By virtue of this authority, the committee, on November 23, 1891, sold and conveyed to one Tucker "all the right, title, and interest of said city in the lot of land and premises situate on the easterly side of South Mill Bridge, so called, bounded * * *, excepting and reserving to it said city, the right to build and maintain a sewer or water course from said bridge to said river, the width of the sluice through and under said bridge." The site of the old tide mill was within the boundaries described in the deed. The plaintiff acquired Tucker's title December 7, 1893, and it is the only title be has. The defendant subsequently put an embankment across the pond for a highway, and filled in around the pond, materially reducing its capacity to hold water, and injuring the mill privilege at the site of the old mill. The plaintiff seeks to recover for this injury. If, upon the foregoing facts, the plaintiff is entitled to recover, he is to have judgment for damages in the sum of one dollar, otherwise there is to be judgment for the defendant.

Calvin Page, John S. H. Frink, and ...