Warren v. Spencer Water Co.

| Mass. | Jan 4, 1887

C. Allen, J.

The respondent’s requests for instructions to the jury were material only upon the question of damages. The questions arise thus:

The respondent, acting under its charter, took the water of Shaw Pond in Leicester on January 26, 1883. The petitioner owned land near by, through which the outlet from the pond flowed; and he brought this petition for an assessment of the damages caused by the respondent’s act of taking the water, and diverting it from flowing in its natural channel through his land. Some three miles down stream, the Spencer Wire Company owned mills, and claimed to own the right to stop the flow of the water from Shaw Pond by a dam at the outlet, and also to draw down the water through the outlet, at its pleasure. This right, if it existed, might naturally be presumed to diminish the value of the petitioner’s right to the flow of the water through his land. On August 20, 1883, about seven months after the respondent had taken the water of the pond, the Wire Company conveyed to the respondent all its right in and to the water of the pond.

The origin of the Wire Company’s right or claim was in this way. In 1774, the proprietors of the common and undivided lands in Leicester passed a vote giving to Samuel Denny the right to drain off the water of the pond, and to build a dam at the mouth of it. It was said in the course of the argument, (and, without examination, we assume the fact to be so,) that by an early statute the Commonwealth had granted to Leicester the water of the pond. It was conceded by the counsel for the respondent that this grant to Denny was limited to the period of his life. Then followed a succession of deeds, beginning with one from Denny himself, with another from his administrators in 1818, and finally coming down by mesne conveyances to the Spencer Wire Company, granting such rights as the grantors respectively had to the use of Shaw Pond and the outlet thereof, for stopping or letting off the water of the pond. It is thus apparent that the only right which the Wire Company could have was a right by prescription. The original proprietors made no grant except that to Denny for his life, and nobody since has acquired any greater right than what may have been gained by prescription. It was indeed suggested in argument, that some greater right may have been acquired by means of a lost deed; but there is no presumption of any lost deed conveying a greater right than is shown by the adverse use of the water, so that nothing can be thus added to the prescriptive right.

Under this state of things, the respondent’s requests for instructions were presented, which, as already remarked, could be material only upon the question of damages. These requests appear to have been designed to present the question of the validity of the conveyance by the Wire Company to the respondent of its right in and to the water of the pond. It is contended by the respondent, that it had a right to acquire by purchase the rights of the Wire Company in Shaw Pond and its outlet, that it was not debarred by its charter from doing so, and that the court in effect ruled at the trial that it could not under its charter acquire this right. The petitioner, on the other hand, contends that under its charter the respondent had not this authority, that its only rights were those given by its charter to take the water for a specific purpose, and that the propositions contained in the rulings prayed for had nothing to do with the case.

Assuming that the respondent is right in this contention, we do not see that it would be injured by a refusal to grant its requests. The respondent, being liable in damages to the Wire Company for the injury caused to its alleged prescriptive rights by the withdrawal of the water, might properly purchase and take an assignment of all the rights of the Wire Company, as a method of satisfying its claim for damages. Granting this, and granting that the court might properly have instructed the jury in the terms requested, and that the respondent thereby acquired all the rights of the Wire Company, no inference arises that the petitioner’s right to damages would be increased by a refusal to give such instructions. The respondent was bound to make compensation both to the Wire Company for the injury done to its prescriptive rights, and to the petitioner for the injury done to him. The damages to which both were entitled must have been determined with reference to the injury sustained at the time of the taking of the water. At that time, ex hypothesi, the petitioner’s right to the natural -flow of the water through his land was limited by the prescriptive right of the Wire Company to regulate and control the flow; and for this reason the damages which he would be entitled to recover would be less than they would have been if the Wire Company had not had such prescriptive right. Settling with the Wire Company at a later date, in whatever form the settlement was made, clearly would not enure to the benefit of the petitioner, or increase his right to damages, because he could only recover the value of what he was deprived of. In declining to instruct the jury in the terms requested, the court gave no instruction and no intimation that the petitioner would or could have a right to greater compensation for the injury to his property, in case the respondent did not acquire and succeed to the rights of the Wire Company in Shaw Pond. The question to be determined was, what amount of damages the petitioner was entitled to recover. Upon this question, it was quite immaterial whether the conveyance by the Wire Company to the respondent was valid or invalid, or whether or not the respondent had in any form settled with the Wire Company. If we could see that the court left the jury at liberty to increase the petitioner’s damages by treating the conveyance as invalid, we should think the exceptions ought to be sustained on this ground. But we draw no such inference from the bill of exceptions.

It should perhaps be added, that we are unable to see that the instructions of the court, which were actually given, were equivalent to a ruling that the respondent could not, under its charter, acquire all the rights of the Wire Company in Shaw Pond. We should have said, on reading the bill of exceptions, that the effect of the instructions given was, that the respondent might acquire the prescriptive right, and that the deeds were some evidence, though not conclusive, of the existence of such right. It being plain that there was no other right than a prescriptive one to regulate the flow of the water, an instruction that such right might be acquired, and that the deeds were some evidence of its existence, would cover all that the facts of the case called for. However, since both parties appear to have understood the instructions otherwise, we do not place the •decision on this ground.

Various exceptions were also taken by the respondent, in matters of evidence.

The testimony of Hutchinson was upon a subject affecting the value of the petitioner’s right to the flow of water, namely, the possible use of his land for a cranberry meadow; and, although the qualifications of the witness to testify to an opinion appear to have been slight, we do not think the admission of his testimony calls for a new trial. Much must be left to the discretion of the presiding judge, in determining the qualifications of witnesses in such cases.' See Commonwealth v. Sturtivant, 117 Mass. 122" court="Mass." date_filed="1875-01-23" href="https://app.midpage.ai/document/commonwealth-v-sturtivant-6418002?utm_source=webapp" opinion_id="6418002">117 Mass. 122, 137.

There was nothing to show what Sugden would have testified that Willis said; so there is no room for an argument that the respondent was injured by the exclusion of his testimony. It has been often decided, in such cases, that the bill of exceptions must contain enough to enable the court to see that the party was actually injured.

The testimony of Warren, as to the settlement made for damages caused to his land, was certainly irrelevant and immaterial, as affecting the question of the petitioner’s damages. But he was called by the respondent, and presumably testified in its favor, though his testimony on his direct examination is not given. If he testified, on direct examination, that the plaintiff’s injury was very slight, his answers on cross-examination may have had a legitimate tendency to impair the weight of that testimony. We cannot say that its admission requires the granting of a new trial.

The testimony offered in support of the respondent’s motion for a new trial was merely to declarations made by a juror after the verdict had been rendered, as to his reasons for arriving at the verdict, and the manner in which the verdict was arrived at by the jury. But a juror cannot thus destroy the effect of the verdict which he has given. If his direct testimony to his own misconduct in the jury-room had been offered for that purpose, it could not have been received. Woodward v. Leavitt, 107 Mass. 453" court="Mass." date_filed="1871-09-15" href="https://app.midpage.ai/document/woodward-v-leavitt-6416524?utm_source=webapp" opinion_id="6416524">107 Mass. 453, 471. A fortiori, his subsequent declarations cannot.

Exceptions overruled.