Heywood v. Miner

102 Mass. 466 | Mass. | 1869

Ames, J.

The injunction to restrain the defendants from flowing'back the water against the plaintiff’s wheels was served upon them early in December 1867, and on the last day of that month the plaintiff moved for an attachment against them, for an alleged violation of the injunction-. At the time appointed for the hearing upon the motion, the parties entered into the first agreement, and the substance of, that agreement was after-wards put into the form of an order of the court. This agreement does not appear to us to amount to a waiver of the injunction, or of the complaint against the defendants for their alleged disobedience of its terms. On the contrary, it points out a mode of settling the question whether, as a matter of fact, the defendants had raised the water above the prescribed limits. To settle this question, an engineer was appointed, as a special master, who was also to decide and report to what height the defendants could raise the water at their dam without setting it back against the plaintiff’s wheels. His report on'the first of these two questions was not to be final, but either party was to be at liberty to introduce further evidence upon that subject; a form of expression which clearly points to a trial on the merits of the application. His determination upon the second question apparently was to furnish the rule which was to govern the subsequent conduct of the defendants so long as the injunction should continue in force; the plaintiff being at liberty to make further application to the court in regard to the matter of contempt; that is, as we suppose, to make a new application in case of any renewal of the cause of complaint. Whatever may be the effect of this agreement and the order of the court upon it as to any subsequent disobedience of the injunction, it still leaves the parties at issue upon the question whether- the defendants had up to that time violated the order of the court, and it looks to a trial by the court of that question, in which either party was at liberty to introduce further evidence after the coming in of the master’s report. The second agreement appears to have been wholly prospective in its operation, and does not amount to a waiver of any previous rights or claims. «

It appears to us that the master’s report, as amended, is not open to exception on the ground that it is “ indefinite, uncertain and not in conformity to the order of reference.” He has reported that the defendants had “ negligently and knowingly ” raised the water. In so doing, it cannot be said that he has assumed to judge of their motives, or to ascribe to them any mischievous design, but he merely informs the court that the raising of the water was not the result of any accident, and did not happen without their knowledge, but on the contrary was produced by their operations and their voluntary acts. The amendment was made with the permission of the court, for the purpose of correctly presenting the result at which he had already arrived, and it was not a matter in which notice to the defendants, or their personal attendance, could be of any practical value or importance to them. It was not sent back to him for a rehearing, but to enable him to correct an error of expression, and required no new evidence or argument. Gardner v. Field, 5 Gray, 600. Webber v. Orne, 15 Gray, 351.

The report of the master is to be accepted, not as conclusive evidence that the defendants were in contempt at the date of the first application, because, by the terms of the agreement, either party is at liberty to introduce further evidence on that subject; it is, however, part of the evidence for consideration in the case.

The first application for an attachment for contempt is therefore to Stand for hearing.