Tilson v. Crane Brook Co., 251 Mass. 337

Tilson v. Crane Brook Co.

251 Mass. 337 | Mass. | 1925

Rugg, C.J.

This is an action of tort to recover damages for the malicious and wilful lowering of Sampsons Pond, a great pond in the town of Carver, Whereby the plaintiff was prevented to his great loss from exercising his privilege of pumping water therefrom to protect his cranberry vines. The evidence tended to show these facts: The plaintiff was *339the owner of a cranberry bog near Sampsons Pond. Water in sufficient quantity to flow the bog was essential to protect the vines from frost and consequent damage to the crop. The plaintiff had been granted a license by the board of harbor and land commissioners “To excavate a channel and lay a wooden flume below the natural high water mark in Sampsons Pond . . . for the purpose of drawing water to flow his cranberry bog . . . the bottom of said flume to be four feet wide and four feet below the level of high water in said pond as shown by a bench mark . . . .” One of the conditions of the license was that the “waters of said pond shall not be lowered except for necessary and reasonable use in flowing the cranberry bog . . . and in no event drawn lower than four feet below the level of the bench mark.” The plaintiff constructed appliances adapted for pumping water from the pond so as to flow his cranberry bog, the intake for the water being forty-five inches below the level of the bench mark. Water sufficient to flow the bog to a depth of twelve inches would lower the level of water in the pond one half inch. At the outlet of . the pond there is and has been since before 1850 a dam, at the time of the plaintiff’s injury under the control of the defendant, with a flume and flashboards, whereby the level of the pond could be raised or lowered. A few rods below this dam the defendant owned and maintained a mill equipped with flume and flashboards. Between these two dams was a little pond capable of being raised to the level of Sampsons Pond, so that its level might be controlled by flashboards at the mill. In the spring of 1915, the water was as low in Sampsons Pond as it ever had been seen before, according to old residents and observers in the neighborhood. Its level was forty-five inches below the bench mark. At that level the plaintiff was unable to pump water on his bog with his appliances. There was no evidence "as to the natural level of the pond or of its low water mark. The only evidence as to the defendant’s connection with the actual level of the pond in 1915 was that its treasurer testified that he visited the outlet of Sampsons Pond in May, 1915, and most of the flashboards were out; that the water was running out of the pond; that.about May 25 or 26 he *340put in the flashboards; that the directors or other officers of the defendant had never discussed the subject of the plaintiff’s taking water from the pond. One Sullivan testified that the president of the defendant, some time in 1914, while near the appliances of the plaintiff, said to him, “You can’t get no water out of here.” That was all the conversation. It did not appear that «Sullivan had any connection with the plaintiff. On or about May 5, 1915, the plaintiff, finding that the water was going down, without being held by flashboards, caused a letter to be written by his attorney to the defendant calling its attention to the fact that the water was becoming so low that he was unable to get sufficient water to flow his bog. On May 29 the plaintiff was unable to operate his pump because the water in Sampsons Pond was so low, whereby his cranberries were greatly injured by a frost on that and the following nights.

This statement demonstrates, without further argument, that there was no evidence of wilful or malicious injury to the plaintiff by the defendant. There is nothing to show the circumstances or the reasons of the flashboards being off the dam, or that the defendant took them off, or that the defendant had any malice or ill will toward the plaintiff or purpose to injure him, or that it had any prevision of a frost on May 29 and 30, 1915. It is unnecessary to consider other questions.

jExceptions sustained. ■