102 Mass. 458 | Mass. | 1869
The venue, in the process by complaint for flowing damages, is regulated wholly by the Gen. Sts. c. 149} § 4. The person, whose land is overflowed or injured, may obtain compensation therefor by complaint, to be made to the superior court for the county where the land or any part of it lies. And the reasonable construction of the statute is, that all the land of the complainant, which is subject to injury from the saíne dam, though it consists of several distinct and separate parcels, situated in different counties, may be embraced in one complaint, brought in the county where any of it is located. The construction contended for by the respondents would multiply litigation, without adding any protection to the rights of either party. There is nothing in the language used which manifests an intention to confine its application to the case of a single tract lying partly in the county in which the suit is brought. See the Gen. Sts. c. 123, § 2, and c. 63, § 23.
The rule for estimating the damages, which was given by the sheriff, required the jury to consider what would have been the ordinary state and condition of the several tracts of land, during the time covered by the complaint, if no dam had been erected. This was in accordance with the decision in Palmer Co. v. Ferrilla 17 Pick. 58, 66; and involved in this case, as in that, an inquiry into the condition of the land at the commencement of the injury, when the dam was first erected. As a general rule, the jury are required to assess, for annual damage, so much as the value of the annual improvement is diminished, as compared with what it would have been had no dam ever been erected; and there is "nothing exceptional or peculiar in this case, which requires any qualification of the rule.
The deteriorated condition of the lands, at the time the complainant became the owner, caused by the previous flowing of them, cannot be made the basis upon which the damage is to be computed. The liability of the respondents is not affected by a conveyance of the land flowed. This would be to give to the millowner a reduction of damages whenever there was a change of ownership. The fact that the land is purchased to a condition affected by flowage, does not change the rule
All the evidence offered at the trial, and objected to by the respondents, upon this ground, was therefore properly admitted, and the instructions asked which were not in conformity with the rule here stated were properly refused.
•There was evidence tending to show that, in consequence of the maintenance of the dam by former owners, a passageway across the river, between two of the lots described, was submerged and destroyed, more than twenty years before, and the then owner was deprived of access to one of the lots; and that it was accordingly left uncultivated, ran to waste, and was deteriorated in value when the complainant purchased it. The sheriff was- asked to instruct the jury that damages could not be recovered on the basis of what the land would have been, had it been pastured and cultivated, although the passageway remained obstructed by the dam.
It is true that no allowance can be made for remote or speculative damages, produced by other causes than raising water by the dam, as for instance those which are the result of the complainant’s own neglect. But if the flowing water separates one part of the complainant’s land from another, so as to render bridges or new causeways necessary, it is a direct injury for which damages are to be awarded, and the cost of the new structure would in some cases be a proper measure of the injury Where the value of the land so separated is not enough to justify the outlay, the damages under this rule must be limited to the loss of productive value.
Here the whole value of the passageway consisted, apparently, in the fact that it rendered the improvement of the lot in question practicable; and the deterioration in the annual produc* tian of the land, which resulted from the destruction of the way and the consequent want of cultivation, was therefore a just measure of the damage resulting from its loss. It is not suggested that any portion of the injury, which makes up this element of damage, might have been avoided by other means of access to the land, which the complainant might have provided
Exceptions overruled.