Brace v. Yale

97 Mass. 18 | Mass. | 1867

Chapman, J.

The instructions given in this case were in substantial conformity with the decision in Brace v. Yale, 10 Allen 441, and are correct unless the facts offered in evidence by the defendant, as to the changes made by the plaintiff in the use of the water, have affected the rights of the parties. These changes are in substance as follows : The plaintiff’s mill was, at the time of that decision, a saw-mill. In 1863 and 1864 the plaintiff built a new mill in its place; repaired the dam at his mill; put in two new wheels, and machinery for sawing logs; also machinery for grinding feed, for sawing lath, and for making cider, and a circular and an up-and-down saw for sawing logs. The defendant offered to show that the plaintiff’s old mill and his own intermediate mill were made with reference to the power of the stream when permitted to flow from the reservoir dam; and that, in using his new mill, the plaintiff sometimes uses much less water than he did before, and at other times much more water, and that this use of the water is an injury to the defendant in working his mill, which is situated between the plaintiff’s mill and his reservoir dam. He contends that the plaintiff had no prescriptive right thus to diminish or increase the volume or moving force of the stream, and that the effect of his conduct was to remit the defendant to his riparian rights, and justify him in obstructing the flow of the stream as he has done. His method of using the water is to arrest it by means of a dam of considerable height until his pond is full, so that when the plaintiff opens the gate of his reservoir dam no water can come to his mill below till the defendant’s pond is filled. The defendant’s gate is placed at the bottom of his dam, and thus enables him to use the water till his pond is exhausted ; and as often as the reservoir gate is hoisted, it is detained in the same way to fill up his pond. When he allows it to flow to the plaintiff’s dam, he sends it in a greater quantity than the plaintiff can profitably use, so that a portion of it is lost to the plaintiff. This is substantially a repetition of the injury that was complained of in the former action. In that case it was decided that the plaintiff’s right was established by evidence that amounted to conclusive proof of a grant, and the character and extent ol the right are stated. As he was authorized to open his reservoir gate at any hour of the day, and use the water to saw a few logs, or even a single log, and then close the gate, or keep it open for as many hours or days in succession as he chose to work his mill, it is difficult to see how his use of the water for working his mill, within the capacity of his gateway, could be limited or regulated except by his own discretion. The change in his machinery was immaterial. Cowell v. Thayer, 5 Met. 253. But if he has exceeded his right by letting down either too large or too small a stream, no authority is cited to show that he thereby forfeited his right to such use of the water as he had already acquired. The authorities referred to in Washburn on Easements, 285, do not establish such a doctrine.

The case of Allan v. Gomme, 11 Ad. & El. 759, relates to the use of a way. It was there held that if one has a right of way appurtenant, and uses it for a purpose not authorized by his grant, he is subject to an action for the tort, but his right is not thereby affected. Applying this doctrine to the present case, if the plaintiff has violated the defendant’s rights by using too large or too small a stream of water at any given time, he has not thereby forfeited his right tc use a proper quantity, but has exposed himself to an action for damages, and perhaps the defendant may have specific relief in equity. Still the defendant has committed a tort in obstructing the whole flow of the stream for a time, and then letting it down in too great quantities, and proof that the plaintiff had done him a wrong cannot justify this tort. Exceptions overruled.