Masonic Temple Ass'n v. Harris

| Me. | Mar 7, 1887

Peters, C. J.

The respondent threatened to obstruct a drain running through his land from the complainants’ premises downward into Belfast bay. The evidence shows that the route traveled by the drain was an ancient natural brook, in former times carrying a considerable volume of water, during the wet seasons of the year, through the city of Belfast into the sea; that for many years the city has supported an underground or covered drain in the place of the brook, extending through the brook its -whole length, from an upper part of the city to the bay; and that this drain has served to carry off waste and foul materials from shops, stores and houses situated upon it. The complainants own a large block, lately erected, containing stores, offices and halls, fitted with water closets, the contributions from which, together with a large volume of water collected in cisterns for flushing purposes, are emptied into this drain.

The respondent justifies his threatened violence upon the drain, upon the ground, as he alleges, that, while the complainants’ building was in process of erection, the municipal officers of the city diverted the drain at a point immediately above the building, carrying it around the land of both the complainants and the respondent, and connecting the new link with the old drain below them; the effect being to lessen the water-power of the watercourse, although increasing its burdens; and in consequence thereof bringing upon the respondent’s premises odors which render such altered and increased use of the drain a nuisance to him.

The complainants deny- such assertions. While admitting the diversion, they disclaim all responsibility of it, and contend that, as matter of fact, more water goes into the drain, in proportion to the waste and filth passing through it, than before the diversion. They further claim that, besides a natural right of using the original watercourse, they have acquired, in common with others, an easement for a more extended enjoyment, by long continued user. Their position is that as a part of the public, they were entitled to have maintained over the respondent’s land an underground, closely covered drain, from which no odors would be emitted, and no annoyance felt by the respondent, if he had not wrongfully, in an improper manner, opened the drain on his land for his own purposes. The complainants do not regard the proof as establishing much of a nuisance, if any.

The evidence of the case is not of a very definite character in all respects. It is enough for present purposes, upon which to predicate some legal propositions for the guidance of the parties, if the legal controversy be continued between them. It does not with certainty appear when and how the drain became a covered drain on respondent’s premises, nor how tightly it has been heretofore maintained there and elsewhere. It does not appear that any drain has been laid out under statutory authority, though it seems that the city has for a long period exercised care over it — and perhaps built it. Evidently, the waters of the brook, for more than a half century, have only been useful for carrying off waste of various kinds.

Whether the complainants are to be affected by the act of the city in causing a diversion, and, if so, to what extent, depends on circumstances. They are not directly answerable for the act. They are not to be cut off below because cut off above. Their own hand has not done it. They have a natural right to use the original brook — the natural watercourse. No one can prevent the exercise of that right. Ashley v. Ashley, 6 Cush. 70. Nor can the complainants’ easement greater than the natural right be thus taken from them; and it is evident enough that they had an easement in the brook or drain, acquired by user.

Still, it is our opinion that the respondent should not suffer any injury by the change. His burdens and inconveniences should not be increased thereby any more than the complainants’ should. The complainants are entitled to use the drain in its changed condition, precisely to an extent which will not inflict more annoyance or injury upon the defendant than he was legally obliged to endure before the change. The respondent is not to be a loser — nor a gainer — by the change. The change cannot add to the burdens of easement upon his land,— nor lessen the legal burdens already resting upon it. The respondent’s burdens should not be augmented, to his injury, either by the consequences of the act of the city, or of the complainants, or of the acts of the city and complainants combined.

We are using the drain to no greater an extent now, say the complainants, than we were before, — than we ever did. The answer is, but your former use and enjoyment of the drain were only relative — dependent — conditional. It was a right to send down your share of the accustomed pollution, provided water came from above interfused with it. Suppose the city had blocked up the drain just below the respondent’s land,— could the complainants be permitted to fill the watercourse with foulings from their buildings to the injury of the respondent? In principle, where is the difference whether the obstruction is made above or below, if it renders the drain a nuisance ? It necessarily follows that, if the city has cut off a natural watercourse or an acquired easement from the complainants, the city would be answerable to them for any hurtful consequences, unless the change was assented to by them, and then the act as affecting them would be damnum absque injuria; and there is evidence in the case that they did assent to the change, and that they even induced the city to make the change.

Upon the facts presented, certain propositions are derivable, in addition to those already stated, and growing out of them, which may further explain the relative rights of the parties.

There is no doubt that the right to pollute a stream to a greater extent than is permissible of common right, may be acquired by prescription. Gould, Waters, § 345, and cases in note. We need not now define a prescriptive easement or explain how one may be acquired.

If the complainants have a prescriptive right to maintain, or to have maintained for their benefit, a close underground drain across the respondent’s land, they may continue using it to any extent which will not affect the respondent more injuriously than when heretofore used as a close and covered drain. In such case, we do not perceive that it would make any difference to the respondent whether the amount of pollution passing through and under his land be more or less. We all know that in the large towns and cities drains are laid under houses, stores, and along the streets, and are unobjectionable as long as properly constructed and properly maintained. In such case, if the respondent uncovers the drain in order to locate privies upon it, thereby creating a nuisance in the neighborhood; he must submit to the consequences of his own act. New drains will admit such openings without the presence of nuisance. Filth may be carried into the channels provided for it in a manner more recommendable. Of course, if there be a covered drain, those who maintain it should keep it in good repair.

If, on the other hand, the complainants are not entitled to maintain a close drain over the respondent’s land, but only a drain subject to openings such as the respondent made in it for private uses of his own, then the complainants would be entitled, as before described, to no use of the drain that will inflict greater annoyance or injury than was imposed on him by such prescriptive easement as existed before the diversion. Gould, Waters, § § 342, 344, 345, 346, and cases. And, in such case, it might make a difference to the respondent whether the amount of foulings contributed by the occupation of complainants’ buildings be one quantity or another.

Under the evidence, this bill must be sustained, whatever the rights of the parties may be in any future litigation. In any view, the complainants had a right to use the drain for some purposes — to some extent. They have never lost or abandoned such right. Even an abuse of the right does not deprive them of it. Gould, Waters, § 348. Locks and Canals v. Railroad, 104 Mass. 8. The respondent was intent upon a total destruction of the water passage, preventing any use whatever of the drain by complainants. The result, had he been unopposed, would have been a wanton blow against both individual. and public privilege. The respondent’s lot, through which the drain runs, is not of much value and from its situation never can be, costing him fifty dollars to obtain title to it some years ago.

The respondent mistook his remedy. If aggrieved, he can sue the complainants for damages; or procure an indictment against them ; or, the most fitting remedy, can move for an injunction in equity, a jurisdiction whose door is always open for the reception of complaints and early action on them. The respondent was bent on a swifter remedy than equity would accord, for equity, acting by injunction, withholds the blow in such case until those interested can make preparation for both private and the public needs. Boston Rolling Mills v. Cambridge, 117 Mass, at p. 401, and citations there.

Bill sustained with costs.

Walton, Danforth, Emery, Foster and Haskell, JJ., concurred.