| Mass. | Apr 4, 1882
These two cases were tried together. By consent of the parties, certain specific questions were submitted to the jury, and the final ruling of the court, which alone is excepted to, was based upon their answers to these questions, and upon the other undisputed facts in the case. We must therefore assume as true the facts established by the findings of the jury, and such other facts as were not controverted at the trial.
It appeared that, in February 1876, the plaintiff brought an action against the defendant Wood in the Superior Court, the declaration containing a count in tort and a count in contract substantially the same as the two counts in these actions. In September 1876, the parties by an agreement under seal submitted to three referees “ all matters covered by the suit aforesaid,” and, in February 1877, the referees made an award in favor of the plaintiff, giving him damages for setting the water back upon his wheel for six years prior to the date of the writ in that case. The auditor to whom the present cases were referred found as a fact, which was not controverted by the defendant, that the award of the referees was for damages claimed upon the count in tort. The question whether the defendant
The defendant Wood bought the mill privilege and dam in 1846, and remained the owner -until November 1875, when he conveyed it to Erastus Davis, who was at this time in possession under a lease. The deed to Davis was not recorded, and the plaintiff had no notice of it. Davis remained in possession until April 6, 1877, when, the defendant Aldrich desiring to purchase the estate, Wood bargained with Davis for his interest therein. Davis surrendered to Wood his unrecorded deed, and Wood conveyed the estate to Aldrich, who has ever since remained in possession. The plaintiff seeks to recover damages from Wood from February 16, 1876, the date of the writ in the former action, to April 6, 1877, and from Aldrich from the latter date to the date of the writ in this action. It appeared at the trial that the dam is now of the same height as in 1876, it having been raised by the defendant Wood in 1865; and that the damage to the plaintiff was caused by this raising of the dam, and its continuance.
It is settled that a person who is injured by a continuing nuisance may maintain an action against the original tortfeasor, who creates it, or against any grantee who continues it after a request and refusal to abate it, in regard to which no question is raised in the case against Aldrich. Penruddock's case, 5 Rep. 100 b. Roswell v. Prior, 12 Mod. 635. Woodman v. Tufts, 9 N. H. 88. Plumer v. Harper, 3 N. H. 88. Pierson v. Glean, 2 Green (N. J.) 36. McDonough v. Gilman, 3 Allen, 264. The defendant Wood, therefore, is liable as the original creator of the dam, at the plaintiff’s election, after his sale to Davis, and it is unnecessary to consider what might, under other circumstances, be the effect of the fact that the deed to Davis was not recorded.
The views we have taken make it unnecessary to discuss many of the points urged in the elaborate arguments of the counsel. It is the necessary result of these views that the plaintiff is entitled to maintain his count in tort against both defendants. Judgments upon the verdicts.