Brown v. Dean, 123 Mass. 254

123 Mass. 254 | Mass. | 1877

Colt, J.

The defendant’s intestate erected the dam complained of, and, during the time covered by the declaration, maintained the same. The plaintiffs claim damage for injury to their mills caused by the backwater of this dam. It is objected that the cause of action does not survive against the administrator. But the statute exception to the general rule by which actions of tort are held not to survive embraces in its terms actions for damage done to real or personal estate by the wrongful act of a party. Gen. Sts. e. 127, § 1. Upon the allegations here made, the real estate and mills of the plaintiffs are diminished in value and their use impaired, as the direct and natural consequence of the wrongful act of the defendant’s intestate in maintaining his dam at such a height as to obstruct the flow of water. It is for injury to this specific property that damages are sought to be recovered, and the case is within the exception of the statute. Cutting v. Tower, 14 Gray, 183. Norton v. Sewall, 106 Mass. 143. The owner of real estate is liable as well for maintaining as for creating a nuisance thereon.

There was evidence at the trial, tending to show that the backwater complained of was in part caused by the lowering of the plaintiffs’ wheel-pit, and in part by the narrowness of the archway through which the water from their wheels was discharged. This evidence did not call for or justify the instruction requested by the defendant upon this point. The doctrine of contributory negligence, as applied in actions to recover for an act of mere negligence on the part of the defendant, has no application to the facts here presented. The jury were told that if they found that the backwater was caused in part by the dam and in part by the causes above referred to, then the defendant would be liable for such part of the damage as was caused by the dam only; such part as they “ were satisfied arose from the wrongful acts of the defendant’s intestate, and not from any other cause.” Towards the injury thus defined and limited, the plaintiffs’ acts, in lowering their wheel-pit and using an insufficient discharge, in no sense contributed. The fact that the plaintiffs do not make the most skilful and efficient use of their mill privilege does not give the right to diminish their power by additional backwater. Clarke v. French, 122 Mass. 419. The difficulty in estimating the loss of power, thus chargeable to the act of the defendant’s intestate, is no greater than must arise in many like sases which are submitted to the jury without question.

We see no valid objection to that portion of the charge of the judge, which related to the right of the plaintiffs to have the water discharged from their premises into the river below, which is now fairly open to the defendant. It was contended at the trial, by the defendant himself, that the dam of his intestate was erected on one of the natural channels of the Hoosac River, which divided at a point above the plaintiffs’ mill, and formed an island, on which the mill of the defendant’s intestate was situated; that the plaintiffs’ mills discharged the water into this natural stream on their own land; and that the rights of both parties were to be construed and determined accordingly. The defendant cannot now complain that the case was tried upon Ms own theory. There was no occasion for an application of the rule that, when a right to a raceway over the land of another is obtained solely by deed which fails to define the extent of the grant, then the appropriation which is first made under the deed must govern. If the defendant desired special instructions in this direction, the attention of the judge should have been called to it. It is manifest that the rule, as applied to this case, would have required qualification, in view of the prescriptive rights claimed by both parties.

The rights of riparian proprietors to the use of running water appropriated for mill purposes were fully stated by the judge, and stated with sufficient accuracy. The jury were told that the lower proprietor may maintain a dam so as to use all the unappropriated water-power, and may cause the water of his pond to set back into the raceway of the mill above, provided it does not obstruct the upper mill-owner’s wheel, and that, “ after each party has made an appropriation of the water-power he is enti ■ tied to, neither can make any changes which shall injuriously affect the rights of the other.”

The jury could not have understood from this, that the mere act of lowering the upper mill and raceway, after the defendant’s rights were acquired, would constitute an appropriation of additional power in favor of the plaintiffs. The rights which either party might acquire by prescription, in derogation of the rights of the other, were discussed and correctly stated in another part of the judge’s charge. And the statement that neither party “ could make changes which should affect the rights of the other ” had reference to rights acquired by occupancy, and not to those which had been otherwise acquired. The jury must have understood and correctly applied the evidence to the two modes in which the rights of the parties could have been legally acquired.

The instruction requested after the charge and before the jury retired was properly refused. It does not follow that the defendant would not be liable, if the jury should find that a previous dam, with its permanent boarding, did not set back water to the damage of the plaintiffs’ mills, and that the present dam is of the same height. The plaintiffs may have acquired prescriptive rights as against the old dam and its permanent boarding, so that the height of the old dam would not now measure the plaintiffs’ rights. And, besides, the whole matter was fully covered by the instructions which the judge had already given.

There was- no irregularity in the proceedings had in court with reference to the verdict. The only verdict on which the jury agreed was accepted and recorded by the court. The paper which, on first coming into court, the foreman handed to the clerk, when asked if the jury had agreed, contained matter entirely foreign to the issue, which, under the direction of the court, was properly erased. But the jury, when asked by the clerk, did not assent to the amended paper as their verdict, and it could not, therefore, be recorded in any form as such. It only remained for the judge to send the jury out for further consultation, and to accept their verdict afterwards rendered, which was correctly responsive to the issue tried, and was duly affirmed in court.

A jury may be sent out again by the court when their verdict does not pass upon the whole matter submitted to them, even if they separated after agreeing upon and sealing up their first verdict, before they came into court. Pritchard v. Hennessey, 1 Gray, 294. Commonwealth v. Carrington, 116 Mass. 37, 39. And, before a verdict is recorded, the jury may be required to reconsider it, if it appears to be a mistake, and may be sent out for that purpose. Root v. Sherwood, 6 Johns. 68. Blackley v. Sheldon, 7 Johns. 32. Goodwin v. Appleton, 22 Maine, 453. Warner v. New York Central Railroad, 52 N. Y. 437.

We cannot see that the proceedings of the court had any tendency to give the jury the impression that they were bound to give a verdict for substantial damages against the defendant, or to prejudice him in that direction. The more natural inference from the whole proceeding would be, that the judge was satisfied with a verdict for nominal damages only. It is enough that on more careful consideration they were able to agree on the verdict which was returned and accepted.

Exceptions overruled.