Dexter v. Providence Aqueduct Co.

1 Story 387 | U.S. Circuit Court for the District of Rhode Island | 1840

STORY, Circuit Justice.

This cause has been very ably argued upon both sides. It does not appear to me to' involve any real difficulty in point of law; but the great stress of the controversy rests on matters of fact. The short statement of the ground of the suit is, that the plaintiff asserts himself in the bill to be the owner of a certain meadow in Providence, containing about five acres, and that, for twenty years and more, before December, 1S32, he, and those, under whom he claims and derives his title, were in peaceable possession thereof, with all the rights and privileges of a certain spring and watercourse thereon situated, and passing and flowing upon and over, and extending and running through a part of the meadow, for the purpose of irrigation, and for drink for his cattle feeding therein; that the defendants, knowing the premises, in December, 1832, dug, sunk, and cut a deep well, fountain, and pit in an adjacent close of the depth of thirty feet, and of the diameter of twenty-five feet, -and dug a trench therefrom, and laid and placed iron pipes or watercourses, leading from the well or fountain to the city of Providence, and have ever since continued to do so; whereby they have diverted the water from the said spring and watercourse, and so diverted the natural flow of the spring and watercourse, that the same are dry for a considerable portion of the year, and the water is thereby hindered and prevented from running and flowing, as it had been immemorially accustomed to run and flow, over and across the said meadow, irrigating and fertilizing the same. Now, the title of the plaintiff to the meadow is not controverted; and if the gravamen, thus stated, is made out by sufficient proofs, I have no doubt 'that the plaintiff is entitled to relief under the bill. The ease of Balston v. Bensted, 1 Camp. 463, is directly in point, if, indeed, the same principle of law had not been fully recognized from very early times. See Tyler v. Wilkinson [Case No. 14.312]; Hazard v. Robinson [Id. 6.281]; Sury v. Pigot, Poph. 166.

The defence principally turns upon a denial of the matter of fact, that the spring and watercourse have been diverted at all, .or, if diverted at all, that it has been caused or occasioned by the digging of the well and fountain and water pipes of the company. In short, the company attribute the diminution of the water to other natural causes, wholly independent of their well, fountain, and aqueduct. There is a large body of evidence, introduced into the cause by both parties. which is, in many of its most important bearings, contradictory or conflicting. The weight, which ought to be attached to it, therefore, must, in a great measure, depend upon the comparative credibility of the respective witnesses. It appears to me, that under these circumstances, and in matters, connected with the common business of practical life, where the experience of a jury might be of great advantage to aid the court in its ultimate decision, it is exactly such a case, as ought to be submitted to a jury upon an issue to be framed for that purpose. I am the more disposed to have this course pursued, because both the bill and answer admit, that there has been one trial of the question by a jury, on the common law side of this court, in which a verdict was found f.or the plaintiff. That verdict is alleged by the defendants to have been entirely unsatisfactory, founded upon very imperfect evidence, and materially affected by the new evidence, which has since been obtained. I cannot, therefore, give it full weight under such circumstances, especially as a new trial was intended to be moved for, but was waived upon a supposed suggestion of the court, that small damages only were given, and it might be as well to leave the merits to be decided in another action, or in ■ a bill in equity. If another verdict is found on the same side, it will almost of itself be decisive. If found the other way, it will take away the entire force of the former verdict, which is now greatly relied upon by the plaintiff, as a strong ground for a perpetual injunction.

AVhat I propose, then, is. to have an issue framed to be tried by a jury at the bar of this court to ascertain: (1) Whether there has been any diversion and drying of the spring or watercourse, occasioned by the digging and sinking of the fountain and aqueduct of the defendants. (21 If there has been any such diversion and drying, what damages have been sustained thereby by the plaintiffs, since the former suit was brought, and before the present bill was bled; or, if it be thought preferable by the parties, (3) what is the permanent diminution or loss in the value of the plaintiff's meadow land, occasioned by the defendants’ digging and sinking the fountain and the aqueduct, as stated in the bill. See Hammond v. Hall, 10 Sim. 551,