Hastings v. Livermore
81 Mass. 10
| Mass. | 1860
Merrick, J.*

This case has been before the court upon a former occasion; at which time the more material question which arose at the last trial, and which has been the principal subject discussed in the argument upon this bill of exceptions, appears to us to have been substantially, if not indeed directly, determined. The object of the parties, both in the prosecution and the defence of the action, is manifestly to ascertain and settle the rights to which they are respectively entitled, and to protect them against loss or infringement. For this purpose the plaintiff, claiming to recover only nominal damages for the alleged interference with his right, produced evidence tending to show that there was an ancient watercourse passing from his land through a culvert under Cambridge Street and thence upon and across the lands of the defendants, and that they had obstructed the passage of the water there by blocking up the ancient channel and diverting it therefrom. This diversion they did not deny, but attempted to justify it by showing that, at *13the same time when the obstruction was created, they opened a ditch on the northerly side of Cambridge Street to Baldwin Street, and thence along in Baldwin Street to lands in which they had no right or interest, through which the water passed off as freely from the plaintiff’s land as it would have done through the land of the defendants if no obstruction had been created there; and they offered to produce evidence to this effect. But the evidence was rejected, upon the ground that the alleged facts, if fully proved, would constitute no justification of the injury complained of, nor prevent the plaintiff from maintaining his action; and because it was immaterial upon the question of damages, since only nominal damages were claimed.

At the trial preceding that in which the questions stated in the present bill of exceptions arose, the defendants relied, in justification of their admitted obstruction of the watercourse, upon the fact that the city of Cambridge had constructed a drain or common sewer in the public highway, by which the plaintiff’s land was drained as effectually as it had before been by the open watercourse. But it was held, that this was no excuse for, or justification of, their tortious acts; and that, if the plaintiff had a right to the easement which he claimed in their lands, they could not disturb him in its enjoyment, or deprive him of its use, because it was not essential to the beneficial occupation of his own land, or because he had other means of draining it, equally or even more efficacious and convenient than that furnished by the ancient watercourse through theirs. Hastings v. Livermore, 7 Gray, 196.

This seems to be entirely decisive of the question. If the defendants unlawfully obstructed the stream, and thereby prevented its passage in its ancient channel over their lands, it is of no consequence by whom a ditch or drain, however large, effectual or sufficient, but liable to disturbance or interference, is constructed or provided, because the preparation of such new passage way does not constitute and cannot be availed of as a justification for depriving the plaintiff of his right to an uninterrupted enjoyment of his easement. The ditch which they proposed to show that they had constructed through Cambridge *14and Baldwin Streets discharged the water of the stream coming from the plaintiff’s land, according to their own statement in their proffer of evidence, upon lands not owned by them, but belonging to other parties. This did not, and could not, give to the plaintiff any absolute assurance that the water would be permitted to flow permanently through this new channel. It was not within his control, nor had he a legal right to claim a perpetual privilege to its use; but, like the sewer constructed by the city of Cambridge, it might at any time be interrupted, removed or changed; for the defendants could not impose, nor the plaintiff acquire by their grant, a right to an easement upon land to which they had no title, and over which they had no right to exercise any control. The evidence therefore which the defendants offered to produce upon this subject was rightly rejected, because the fact the existence of which they proposed to prove by it was wholly immaterial to their defence. It would, in the state of the case in which its admission was refused, have been of no possible use to the party producing it, as it had no tendency to establish a legal justification of the cause of action set forth in the declaration, or to reduce or diminish the damages demanded.

The petition signed by the witness Cutler was properly allowed to be given in evidence. It had some tendency to contradict one of the material statements in his testimony; and although it was not made perfectly clear how far he was cognizant of the contents of the paper which he signed, the degree of credit to which, upon all the proof, he was entitled, could only be determined by the jury, to whom the whole matter was properly submitted. Exceptions overruled.

Hoar, J. did not sit in this case.