Brace v. Yale

99 Mass. 488 | Mass. | 1868

Hoar, J.

There is nothing in the facts found and reported in the first suit, which, in the opinion of the court, can change the rule governing the rights of the parties, which was applied in Brace v. Yale, 10 Allen, 441, and Same v. Same, 97 Mass. 18.

The right of the plaintiff, acquired by prescription, as founded upon the facts agreed in Brace v. Yale, 10 Allen, 441, was a right to retain the water in the reservoir, and let it down in such quantities and at such times as he chose, for the purpose of working his mill. Although the defendant might derive some advantage from it as it passed his mill, he had no right to interfere with the time or manner of letting it down. He had no property or right in the reservoir, and could not lawfully obstruct or delay the passage of the water which came from it. But it was found in the action at law, and is again found, that the defendant’s dam in its present condition constitutes such an unlawful obstruction. It delays the passage of the water by the time which is required to fill the defendant’s pond; and by its leaky condition it allows the water to run to waste when the plaintiff’s mill is not in operation, so as to necessitate a repeated filling from day to day. This invasion of the plaintiff’s right is found to exist to the prejudice of the plaintiff’s unquestioned use of his mill, and without reference to the alterations and improvements which he has made.

In Brace v. Yale, 97 Mass. 18, it was decided that the rights which the plaintiff had before the alterations in his dam are not affected by them; and that the defendant was answerable in an action at law for holding back or letting down water contrary-to the rights established by prescription. The remedy in equity must depend upon the same principles. The plaintiff is therefore entitled to the relief which he seeks.

Decree for the plaintiff accordingly, with costs.

In the other suit the question is raised whether the fact that the defendant, by raising and tightening his dam, and putting different machinery into his mill, makes a different use of the water from that which he made while he was gaining his prescriptive right, gives the plaintiff any right to have the flow of the water from the reservoir regulated for his benefit. And we cannot perceive that it does. The acquisition of the prescriptive right to use the reservoir by the defendant certainly gave the plaintiff no right in it. The plaintiff might use it or not at his pleasure. If there were no prescriptive right to use the water in the way it is now used, still the only right of the plaintiff would be to the use of the water in its natural flow, and this the report-finds is of no value to him. He is not injured by being deprived of it, and is not therefore entitled to any equitable relief. His real ground of complaint is, that the defendant does not use the prescriptive right to his advantage, which he is not bound to do. He may omit to exercise it entirely.

Bill dismissed, with costs.