Warren v. Spencer Water Co.
| Decision Date | 05 January 1887 |
| Citation | 9 N.E. 527,143 Mass. 155 |
| Parties | WARREN v. SPENCER WATER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Rice King & Rice, for respondent.
The respondent's first request for ruling should have been granted, and the charge of the court upon that point was erroneous. The Spencer Water Company had the right to acquire by purchase the rights of the wire company in Shaw pond and its outlet. St.Mass.1882, c. 119, §§ 2, 3, 5. While it is true that the deeds are "some evidence of a prescriptive right to regulate the flow of water," that is not the only province of the deeds. Such deeds as are exhibited in the case are sufficient, by all rules of construction, to convey rights as between the parties. The second request for ruling should have been given. Brace v. Yale, 10 Allen, 441.
The evidence of one E.H. Hutchinson ought not to have been admitted. He was not qualified as an expert to give his opinion, nor "as a person of large experience in any particular art, business, or science." Dickenson v Fitchburg, 13 Gray, 555; Nelson v. Sun Ins Co., 71 N.Y. 453; Page v. Parker, 40 N.H. 59; Jones v. Tucker, 41 N.H. 546; 1 Greenl.Ev. § 440a; Gorton v. Hadsell, 9 Cush. 508; Hills v. Home Ins. Co., 129 Mass. 349, and cases cited; O'Connor v. Hallinan, 103 Mass. 547; Perkins v. Stickney, 132 Mass. 217; Bacon v. Williams, 13 Gray, 527; Wiggins v. Wallace, 19 Barb. 338.
The declaration of an owner of real estate, made while in occupancy of the premises, holding the legal title thereto tended to show the extent of his possession, and should have been admitted. The evidence of Edward Warren was res inter alios acta. It might have influenced the jury; it could not have aided them.
The motion for a new trial should have been allowed. Dorr v. Fenno, 12 Pick. 521; Grinnell v. Phillips, 1 Mass. 530; Coffin v. Coffin, 4 Mass. 1; Woodward v. Leavitt, 107 Mass. 467.
Private communications between husband and wife are privileged; yet, if one overhears such a conversation, he can state it in evidence. If a person overhears a juror outside make declarations inconsistent with an honest verdict, he can testify thereto.
John Hopkins, for petitioner.
The questions raised are (1) as to the admission of certain evidence before verdict; (2) as to the admission of certain evidence after verdict, upon the motion for a new trial; (3) as to the construction to be given to certain deeds under which the defendant claimed.
The water of Shaw pond having been taken from the petitioner's land, one question was the extent of the resulting damage. The opinion of experts as to damage done by flowing land is admissible. Hosmer v. Warner, 15 Gray, 46. See section 18, c. 190, Pub.St.Mass. The question whether the witness has the requisite knowledge to give an opinion is largely within the discretion of the presiding judge. Tucker v. Massachusetts Cent. R.R., 118 Mass. 546; Vandine v. Burpee, 13 Metc. 288. Edward Warren was called as a witness for the respondent on the question of damages, and his accuracy, his understanding, his integrity, his biases, and his means of judging were involved. A witness may be subjected to a strict cross-examination to test him in all these respects. Perkins v. Adams, 5 Metc. 44. It is to be presumed that there was such other evidence before the judge as was necessary in order to make admissible the evidence excepted to. Parmenter v. Coburn, 6 Gray, 509.
Testimony of jurors cannot be received, even in support of a verdict, to prove the part taken by them in the jury-room in arriving at a verdict. Woodward v. Leavitt, 107 Mass. 453. The juror's conversation with reference to the verdict, as he is "walking to dinner down the sidewalk," would seem to be much more objectionable.
The rulings given by the court with reference to the prescriptive right of the respondent to regulate the flow of the waters of Shaw pond was sufficiently favorable to the respondent, to say the least. The respondent was not incorporated for the purpose of stopping the waters, so that they might be let down at its pleasure through the brook. Its only rights were those given by its charter to take the waters for a specific purpose. The propositions contained in the ruling prayed for might be true, but they had nothing to do with the case. Prescription always presupposes a grant. In prescription the proof is by the use; and the right presumed to be granted is co-extensive with the use. If the grant itself be produced, the extent must be determined by the terms of the grant. Charles River Bridge v. Warren Bridge, 7 Pick. 449.
OPINION
The respondent's requests for instructions to the jury were material only upon the question of damages. The questions arise thus: The respondents, acting under their charter, took the water of Shaw pond, in Leicester, on the twenty-sixth of January, 1883. The petitioner owned land near by through which the outlet from the pond flowed; and he brought this petition for an assessment of the damages caused by the respondent's act of taking the water, and diverting it from flowing in its natural channel through his land. Some three miles down stream, the Spencer Wire Company owned mills, and claimed to own the right to stop the flow of the water from Shaw pond by a dam at the outlet, and also to draw down the water through the outlet at its pleasure. This right, if it existed, might naturally be presumed to diminish the value of the petitioner's right to the flow of the water through his land. On the twentieth of August, 1883, about seven months after the respondent had taken the water of the pond, the wire company conveyed to the respondent all its right in and to the water of the pond.
The origin of the wire company's right or claim was in this way. In 1774 the proprietors of the common and undivided lands in Leicester passed a vote giving to Samuel Denny the right to drain off the water of the pond, and to build a dam at the mouth of it. It was said, in the course of the argument,--and, without examination, we assume the fact to be so,--that by an early statute the commonwealth had granted to Leicester the water of the pond. It was conceded by the counsel for the respondent that this grant to Denny was limited to the period of his life. Then followed a succession of deeds, beginning with one from Denny himself, with another from his heirs in 1818, and finally coming down by mesne conveyances, to the Spencer Wire Company, granting such rights as the grantors respectively had to the use of Shaw pond, and the outlet thereof, for stopping or letting off the water of the pond. It is thus apparent that the only right which the wire company could have was a right by prescription. The original proprietors made no grant except that to Denny for his life, and nobody since has acquired any greater right than what may have been given by prescription. It was, indeed, suggested in argument that some greater right may have been acquired by means of a lost deed; but there is no presumption of any lost deed conveying a greater right than is shown by the adverse use of the water, so that nothing can be thus added to the prescriptive right.
Under this state of things, the respondents' requests for instructions were presented, which, as already...
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