213 Mass. 74 | Mass. | 1912
The plaintiff seeks to restrain the defendants from interfering with her use of a certain spring of water. The
The defendants’ first contention is that the description of the spring in the deed to Brewer is void for uncertainty. The description is sufficient if it identifies a particular spring when its language is applied to the surface of the earth by one acquainted with the physical features of the neighborhood. There was some conflicting evidence respecting another spring near the one in controversy. The master may have disbelieved so much of the testimony as tended to show that there was another spring. The weight of that which is reported seems against the existence of another spring in any proper sense. But however that may be, without reviewing the evidence in detail, there is no reason for setting aside his definite finding that the spring now in question was the one described in the deed of 1851, nor for reaching the opposite conclusion.
The defendants earnestly contend that the evidence shows conclusively that they have title by adverse use to the fee of the entire spring. The Northrup deed of the “spring of water” conveyed a fee in so much of the land out of which the spring issued as was necessary for the reasonable use of the spring itself, as well as a right to the water. Proprietors of Mills v. Braintree Water Supply Co. 149 Mass. 478, 484. Johnson v. Rayner, 6 Gray, 107. Owen v. Field, 102 Mass. 90, 102. Davis v. Spaulding, 157 Mass. 431, 435. When the deed was given in 1851 Northrup, the grantor, used the spring as the sole source of water supply to his house, and his successors in title, including the defendants, have used it continuously since then. The quantity thus used is much less than the capacity or normal flow of the spring. Prescriptive title undoubtedly has been established thus to continue to withdraw water to a like extent in the future. Peck v. Clark,
It has been urged that the evidence shows that a predecessor in title of the plaintiff asked and received permission from the owner of the servient estate to connect a pipe with the spring box, and that hence an abandonment should have been found. This evidence was not decisive. Warshauer v. Randall, 109 Mass. 586. King v. Murphy, 140 Mass. 254. It was to be weighed with all the other circumstances. Commonly the question whether there has been an abandonment is one of fact. Willets v. Langhaar, 212 Mass. 573, and cases there cited. Speaking accurately, nonuser and abandonment apply only to an easement, and not to a fee such as was conveyed by the deed here in question. It cannot be said that the finding of the master in this respect was wrong.
The defendants offered in evidence an assignment of dower made by commissioners in 1853 to the widow of Gilbert D. Northrup, in which was this paragraph, “Also reserving the right of a spring of water now carried to the dwelling house of the said deceased, and also of another spring of water contracted for by Alonzo Brewer.” We do not perceive any error in the exclusion of this report. It does not relate to the spring of Ira A. Brewer. It does not tend to show any larger use of the spring than admittedly has been acquired by prescription by the defendants and their predecessors in title. Decree affirmed with costs.
Made by Fox, J. The master was Walter F. Hawkins, Esquire.