Cobb v. Massachusetts Chemical Co.

179 Mass. 423 | Mass. | 1901

Hammond, J.

The defendant, the Massachusetts Chemical Company, as the successor to the grantee named in the deed of December 22, 1814, is the owner of the strip of land running through the land of the plaintiff, and has the right to maintain thereon the raceway of that width; and, whether the strip be the bed of an artificial canal or of a natural stream, may lawfully remove in a reasonable way all obstructions to the usual flow of the water. In some such cases it is reasonable to place some of the obstructions upon the neighboring land. Prescott v. White, 21 Pick. 341. Prescott v. Williams, 5 Met. 429.

The judge has found that the company in clearing out the raceway widened it to twenty feet or more. This they could not lawfully do either under their deed or the mill acts. These statutes relate to flowing, and not to excavating, land.

Under the facts as found, it is clear that the company has made an unlawful use of the plaintiff’s land, and intends to continue in such use. If the use be continued, it may in time ripen into a title by prescription, and we are of the opinion that the plaintiff is entitled to an injunction against such a continual trespass. She ought not to be compelled to sell her land in this way. It appearing, however, that the value of the land interfered with is very small, and that the advantage to the plaintiff of restoring it to its former condition would be very slight, and the expense to the defendants would be much greater than the advantage to the plaintiff, we do not think justice and equity require that the company should be ordered to restore it to its former condition. As the jurisdiction in equity is sustained for the purpose of injunction, it may be retained for the assessment of the damages suffered by the plaintiff for what has been already done.

The result is that the plaintiff is entitled to a decree against the defendant, the Massachusetts Chemical Company, awarding her damages, and enjoining it substantially as asked in the first prayer of the bill.

The court has found that the value of the plaintiff’s land interfered with does not exceed $25. Of course the value of the land may not be the true measure of damages. If the parties can agree as to the damages, a decree may be entered for the sum agreed upon ; otherwise damages are to be assessed.

To prevent misapprehension it is well to state that the decree is not to be so framed as to shut off whatever rights the Chemical Company has under the statutes relating to mills or under the deed of Clap to the Union Manufacturing Company.

So ordered.