Fuller v. French

| Mass. | Oct 15, 1845

Shaw, C. J.

The plaintiff, being owner of land flowed by a mill dam, formerly recovered judgment for his annual damages, on his own complaint, against those who were then owners of the mill and dam. This is conclusive evidence of his right to recover of them or their successors, till the privilege is abandoned. French v. Braintree Manuf. Co. 23 Pick. 216. The case shoAvs no abandonment. The City Factory Avas burnt doAvn, but the dam remained and raised the Avater; and the Avater poAver was in fact used, by means of gearing connecting the water wheel with machinery. The dam Avas afterwards carried aAvay; but this did not extinguish the mill owner’s right. He might, within any reasonable time, and at any season of the year, rebuild the dam, by which the plaintiff’s land was constantly liable to be flowed. Nothing short of an abandonment will extinguish the mill owner’s right to floAv; and whilst that right continues, the land owner’s corresponding right to damage also continues. Here there has been no express abandonment, and no evidence from which an abandonment can be inferred.

And the court are also of opinion, that the defendant, as mortgagee in possession, is liable to this action, being privy in estate with the former owners, against whom the judgment was recovered. The rule that a mortgagee is, to most purposes, regarded as OAvner, is founded on principle, and confirmed by analogous cases. He takes the profits. Be has the actual and beneficial use of the plaintiff’s land. He is seized and possessed; and the mortgagor’s interest is reduced to a right to redeem. The annual damages, which are in the nature of a rent-charge, should properly come out of the annual earnings and profits of the estate, which are taken by the mortgagee. Before entry, the mortgage, to many purposes, is regarded as a pledge ; the mortgagor holds the estate and takes the profits. But after entry, the mortgagee holds the estate, and enjoys all the benefits, and is subject to all the burdens of an owner. He has the use of the estate, receives the rent, enjoys the right of a freeholder, with the civil and political privileges incident to that relation. On the other hand, he is bound to pay all taxes and to perform all other duties incident to the ownership of the estate. The court are therefore of opinion that this action may be well maintained against him, as mortgagee in possession.

Exceptions overruled.