312 Mass. 398 | Mass. | 1942
The plaintiffs and the defendants are the owners respectively of two parcels of adjoining land. The defendants hold title as heirs at law of one Frank Dovidio, who
The plaintiffs excepted to the findings of the master upon the sole question of damages. A final decree was entered granting the plaintiffs affirmative relief, but no damages. They appealed from the interlocutory decrees denying their motion to recommit and confirming the report, and from the final decree.
As we understand the master’s report, in 1916, and for a long time prior thereto, the water from a spring on the plaintiffs’ land constantly flowed across their land in an easterly direction to the westerly boundary of what is now the defendants’ land, and thence continued in a northerly direction along what is now the common boundary of the parties for about one hundred feet, when it turned and ran easterly across the defendants’ land, thence through a culvert under a street on its way to the Nashua River.
Upon a sketch annexed to the master’s report (the substance of which is printed herewith), these several courses are indicated respectively as ditches C, B and A. The
It is unnecessary to go into the findings of the master relative to obstructions in ditch A and the refusal of the defendants to permit the plaintiffs to clean it, inasmuch as the plaintiffs were given affirmative relief in these respects by the final decree from which the defendants have not appealed.
One important question for determination is whether the plaintiffs are entitled to have ditch D reopened. The closing of this ditch, together with the obstructions in ditch A, resulted in raising the water level on the plaintiffs’ land and in making the portion of it nearest ditches C and B too wet for the successful growing of market crops. The master found that there was “a natural watercourse” over the lands of both parties and that the defendants have interfered “in the following manner with the natural flow of the water, to the damage of the plaintiffs: (1) By eliminating the rounding curves at the intersections of ditches B and A, and by making right angle turns at those intersections. (2) By failing to keep ditches B and A clean and by refusing to permit the plaintiffs to enter upon their land
It is not contended that ditches C, B and A are not a watercourse as to which both parties have the rights and obligations pertaining to a natural watercourse. See Luther v. Winnisimmet Co. 9 Cush. 171, 174, 175; McGowen v. Carr, 272 Mass. 573, 576. The defendants had a duty not to obstruct wrongfully the water in this course to the plaintiffs’ damage. Hastings v. Livermore, 7 Gray, 194, 196. Yaskill v. Thibault, 273 Mass. 266. See Cary v. Daniels, 5 Met. 236, 238, S. C. 8 Met. 466, 476; Ashley v. Ashley, 6 Cush. 70. The plaintiffs’ contention, however, is that they are entitled to additional relief against the defendants by requiring them to open ditch D and, apart from a question of damages, this is the only question raised by their appeal.
A landowner has no right to subject the land of another to a servitude of running water to which it is not naturally subject. Jackman v. Arlington Mills, 137 Mass. 277, 283. Such a right, however, may be acquired. There are no easements of drainage in the deed of either party, and it does not appear from the findings of the master that the plaintiffs have acquired by adverse user any right of drainage through ditch D. When or by whom this ditch was dug does not appear. It was entirely upon the land of the defendants, but the plaintiffs, prior to 1936, “with the approval of the defendants,” often cleaned it. See White v. Chapin, 12 Allen, 516, 522. Neither does it appear that it was dug as a substitute channel for the original watercourse. So far as appears, the original course was not abandoned. In fact, one complaint of the plaintiffs is that the defendants have obstructed it. The deepening, widen
The plaintiffs’ other contention is that they are entitled to recover damages, at least nominal damages. The master found that it was impossible to compute accurately the plaintiffs’ damages “as much of the damage, though real, is based upon conjecture.” The plaintiffs asked for damages, and offered evidence on the question. Affirmative relief was granted the plaintiffs, but no damages. Where equitable relief is denied, it is discretionary with the court either to retain the suit for assessment of damages, or to dismiss the bill with the reservation to the plaintiff of his right to recover damages in an action at law. Booras v. Logan, 266 Mass. 172, 175. It is desirable when a suit is
In the Fortier case where it was said that any finding of damages in money would rest upon no safer foundation than guesswork and conjecture (page 301), it was held that in these circumstances the plaintiff could not recover damages. The plaintiffs, however, in support of their contention that they are entitled to nominal damages, rely on the case of Belcastro v. Norris, 261 Mass. 174, cited in the Fortier case, where, upon the finding of the master that the plaintiffs’ land had been damaged, the amount of which could not be determined, it was held that the plaintiffs were entitled to nominal damages and a decree was entered for them for nominal damages and injunctive relief against the
The interlocutory decrees are affirmed, and the final decree, modified in accordance with this opinion, is affirmed.
Ordered accordingly.