Brady v. Blackinton

| Mass. | Nov 29, 1899

Hammond, J.

In order to maintain this action at common law it is necessary for the plaintiff to show that the height of the defendant’s dam has been fixed by a verdict, or an award or an agreement clearly intended as a substitute for proceedings under the mill act. Pub. Sts. c. 190, §§ 1, 4, 28. Leonard v. Wading River Reservoir, 113 Mass. 235" court="Mass." date_filed="1873-10-15" href="https://app.midpage.ai/document/leonard-v-wading-river-reservoir-co-6417389?utm_source=webapp" opinion_id="6417389">113 Mass. 235. Brady v. Blackinton, 113 Mass. 238" court="Mass." date_filed="1873-10-15" href="https://app.midpage.ai/document/brady-v-blackinton-6417390?utm_source=webapp" opinion_id="6417390">113 Mass. 238. The plaintiff concedes that there has been no verdict nor award, but he contends that the height to which the defendant had a right to flow under the mill act as well as under the deeds was fixed and determined by the paper filed by the predecessor in title of the defendant in the case of Brady v. Blackinton, ubi supra. That was a complaint under the mill act in which the defence claimed that the defendant, under the deeds to him or otherwise, had no right to flow above the high-water mark named in the deeds. The court decided otherwise, and July 3,1875, an order for a sheriff’s jury to assess damages was passed.

On October 11,1875, the respondent filed the paper in which he says he “ now utterly and forever refuses to have thrust or forced upon him, and utterly disclaims any right whatsoever of raising the water ” above the limit named in the deeds to him. The order for the jury was “ stricken off ” the next day, and on May 16, 1876, the parties made the agreement of compromise which was shortly carried out, the case being disposed of by the entry of “ Neither Party.”

In the first place the paper does not purport to be an agreement, Its language would seem to imply that the respondent did not expect an agreement, for he speaks of having the easement under the mill act “ thrust or forced ” upon him. He had been beaten in his defence upon the question of liability; the court had ruled that he had an easement under the' mill act, and he was about to face a jury upon the question of damages for that easement. He could not avoid his responsibility for the value of that easement without the consent of the complainant. The paper could not have the effect of depriving the complainant of a right which the court had just decided he had.

Nor was it a conveyance of the easement which the respondent had under the mill act, for it was not under seal. Dyer v. Sanford, 9 Met. 395. Isele v. Schwamb, 131 Mass. 337" court="Mass." date_filed="1881-07-05" href="https://app.midpage.ai/document/isele-v-schwamb-6420376?utm_source=webapp" opinion_id="6420376">131 Mass. 337.

Nor does it appear that the complainant ever accepted the disclaimer, or in any way agreed to it, or that the subsequent settlement was based upon it.

Exceptions overruled.