280 Mass. 303 | Mass. | 1932
The plaintiff seeks by this suit in equity to restrain the defendants from maintaining certain dams so as to deprive him as a lower riparian proprietor of the natural flow of water in Hop Brook, to recover damages sustained by him through their alleged unreasonable interference with the waters of the brook, and for other relief. The real estate and water rights involved are in the town of Sud--bury. The watershed of the brook comprises about four square miles. The principles of law governing the respective rights of upper and lower proprietors upon a stream are stated with citation of supporting authorities in Stratton v. Mount Hermon Boys’ School, 216 Mass. 83, at pages 84-85: “The common law rights and obligations of riparian owners upon streams are not open to doubt. Although the right to flowing water is incident to the title to land, there is no right of property in such water in the sense that it can be the subject of exclusive appropriation and dominion. The only property interest in it is usufructuary. The right of each riparian owner is to have the natural flow of the stream come to his land and to make a reasonable and just use of it as it flows through his land, subject, however, to the like right of each upper proprietor to make a reasonable and just use of the water on its; course through his land and
The case was referred to a master to hear the evidence and to find and report the facts. The evidence was not reported. Under the familiar rule these findings of fact must be accepted as true unless plainly wrong, mutually inconsistent or contradictory or vitiated in view of controlling principles of law. The original and supplemental reports of the master are somewhat voluminous. A brief summary of the findings will suffice.
The plaintiff, after a long search for a very special kind of property susceptible of adaptation as an unusual country place to his peculiar uses and sensibilities and possessing features attractive to birds and waterfowl, bought, beginning in 1922, four parcels of wild land aggregating about six acres in area, and spent several years in developing the tract for his particular purpose at a total cost of about $40,000. The brook was the central feature of his plan and the use made by him of it, intended to gratify his own taste, was legal and reasonable. The defendants Ford (hereafter called the defendants) in 1923 bought the historic Wayside Inn estate and by subsequent purchases have acquired in all about three thousand acres. They are engaged in a development of a semiphilanthropic nature which is of substantial public interest and benefit. They have installed in the Wayside Inn a great variety of antique furniture, furnishings, pictures and documents. The place is visited by many thousands of people annually. They have also established an elementary school and a trade
The ultimate findings with reference to the Carding Mill Pond were that the defendants thus far have made no use of its waters, that if a water wheel were installed for the purpose of furnishing power to run the small machines in the mill building, such use would be reasonable provided that this could be accomplished without diminishing the
When the master’s report came on to be heard it was recommitted to him “to determine what is the normal or average natural flow of the brook, when there is neither flood nor drought, and to report some method by which that amount of flow can be measured, and determined on the ground by means of bench marks or other method which can be made readily available to the parties, and which can be referred to in the decree as fixing their rights.”
Although there were no specific allegations in the bill on this point, the inquiry was germane to the nature and extent of injunctive relief to which the plaintiff might be
Pursuant to this order of recommittal the master found that the accurate method of ascertaining the flow of any watercourse is to keep a daily record over a considerable number of years and that no such record has been kept of Hop Brook. Therefore a considerable amount of evidence was heard consisting chiefly of calculations made by hydraulic engineers based upon the area and nature of the watershed and records of the yield of water covering many years in the Sudbury River basin which adjoins the watershed in question. Different methods of calculating the average natural flow of the brook were presented in testimony. Manifestly the result of any such calculations does not conform to the facts of nature. According to nature water does not flow in any stream by averages, but flows by extremes. The rainfall in this Commonwealth as matter of common knowledge is not uniform in successive years or in the different months. The variation is wide in both particulars. The master finds that the run-off of the Hop Brook watershed varies greatly at different seasons of the year and that the calculated average for the months of July, August, September and October is less than one half the calculated average yearly run-off for the same period. Any such calculations must therefore be largely hypothetical and not practical. Evidence of this nature in the absence of actual records is the only resort, according to the present state of the science, for estimating the flow of a stream, so far as shown on the record. The master reports in some detail these different theories of calculating the average flow of a stream and the results of their application to the problem before him. He stated amongst other matters that according to one computation (which he pronounced helpful and instructive) in August, 1910, and in July, 1926, there was no run-off whatever from the Hop Brook shed and a great many other months when it was
The conclusion of the master is that the normal or average natural flow of the brook through the premises of the plaintiff when there is neither flood nor drought, and after making allowance for the reasonable use of the stream by the defendants as it passes through their premises, is four cubic feet per second. Whether that is a just estimate must, depend upon the application, of sound common sense to
The findings of the master respecting the uses made by the defendants of the waters of the brook cannot be pronounced plainly wrong or in vital particulars inconsistent and contradictory. It is not necessary to examine in detail the exceptions to these findings of the master. So far as material they are covered by what has been said. The interlocutory decree overruling all exceptions and confirming the master’s report, except with reference to damage, was right. The finding as to the quantity of water constituting the normal or average flow of the brook cannot be held to be erroneous and must be accepted.
The result of all the findings is that there has been no use by the defendants of the waters of the brook in an unreasonable way except in connection with the Carding Mill Pond. The findings respecting that pond show that water has been kept for storage and not used in any way, that the operation of the mechanisms at the dam for releasing water has been such as to hold it back and prevent its flow into the brook, and that the seepage into the neighboring watershed has been excessive. This method of management of the pond has caused and is likely to continue to cause unreasonable interference with the rights of the plaintiff to the natural flow of the stream.
The difficult question is the kind of relief to which the plaintiff is entitled. The defendants have not unreasonably interfered with the rights of the plaintiff by any of their structures and uses of water except at the Carding Mill Pond. They have made no threats of unreasonable uses in the future at their other structures. Bright’s Pond has been used for the operation of the grist mill and such use is reasonable. If it should cease to be so operated and that pond used entirely for storage or other purposes dif
A constant flow of four cubic feet per second in the brook as it enters the plaintiff’s premises is something different from its actual natural flow. In some, if not in all, aspects it is more advantageous than the natural flow. It is a fixed and definite, in place of a highly variable, amount of water. But the defendants have interfered unreasonably with the natural, uncertain and inconstant flow to which the plaintiff was entitled. That interference must cease so far as it is unreasonable. The law must provide some means for adjusting the controversy between these parties. It ought not to stop short because perfect relief and an exact gouge for measuring rights are not available, provided approximate justice can be done. No alternative has been suggested to the finding of the master based on the calcula
The master has undertaken to set forth at some length the factors taken into account by him in assessing damages at.$10,000. The rule for determining damages in a case of this nature respecting injuries to real estate is plain. Succinctly stated: The plaintiff was entitled to recover compensation for all injuries to his estate which were the natural and proximate result of the wrongful acts of the defendants. Such damages commonly must be measured (1) by depreciation in market value, if the injury is of a permanent nature, or (2) by loss in rental value if the injury is occasional or temporary. Wrongful interference with enjoyment or comfort in the use of property entitles the injured landowner to compensatory damages including the reasonable expenses of repairing specific injury. So far as unpleasant conditions resulted interfering with the comfort of existence of the occupant of the premises, the question is not the actual effect upon a particular plaintiff or other
The master states that the plaintiff makes no claim for diminution in market value of the property. As we interpret the report that element was not taken into account in assessing damages and it drops out of the case. The master found that the plaintiff’s property became “altogether untenable” in 1929, and states that in assessing damages he “took into consideration the total loss of use for the summer of 1929.” The damage for occasional and temporary injury not of such permanent character as to affect market value could not commonly rise above total loss of rental value. Yet the master states that in addition to total loss of rental value he also took into consideration “the comfort of the plaintiff” and all of the conditions “which made the property less attractive, including the absence of water, loss of the birds, presence of objectionable vegetation, odors, mosquitoes, the presence of the deposit of sand in the bed°of the brook” and certain other matters such as loss of the wild fowl and the fact that the plaintiff and his wife have been unable to entertain their friends. The master does not explain further what was meant by
These and other statements in the report indicate that the master did not follow correct principles of law in assessing damages. The emphasis throughout appears to be to state the particular effect upon the plaintiff and not to
No error is disclosed in the denial of the defendants’ motions to amend the order of reference, and to require the master to report the evidence. The disposition of these motions rested in sound judicial discretion which does not appear to have been abused.
The result is that the interlocutory decree of December 10, 1930, confirming the master’s report in part, is affirmed, and that of October 27, 1931, is reversed. The final decree is reversed because of error in the determination of damages. That decree is also wrong in respect to injunctive relief. If and when a final decree is entered, the relief, so far as injunctive in nature, must be confined exclusively to the Carding Mill Dam and the waters thereby held back, and reference to any and all other dams, gates and works of the defendants must be eliminated.
Interlocutory decree of December 10, 1930, affirmed.
Interlocutory decree of October 27, 1931, reversed.
Final decree reversed.