151 Mass. 46 | Mass. | 1890
, The defendant in the construction of its railroad in 1880 brought together eight natural streams of water, and discharged them through one culvert, which was built under its road-bed, upon the land now owned by the plaintiff, at a different place from that where either of them originally flowed; and indeed three of the streams had never before flowed over this land at all. Under the instructions which were given to the jury, they must have found that this mode of discharging these streams of water upon the plaintiff’s land was not necessarily adopted in the proper construction of the railroad. Since the building of the culvert, the waters of the brooks and also an increased volume of surface water have flowed through it, varying in quantity with the seasons, and possibly causing some damage to the land in question prior to the time of its purchase by the plaintiff, though this fact is not distinctly found, and at any rate, so far as appears, no action for such prior damage was ever brought. The plaintiff purchased the land in May, 1887, and in July and August of the same year there were heavy rains, and the plaintiff’s land was overflowed, and sand deposited thereon, and the crop of hay injured, but no part of the land was rendered worthless, and it was only for the damage which thus occurred after his purchase that the plaintiff sought at the trial to recover.
No doubt the former owner of the land might have sued at once for the invasion of his right by the discharge of the several natural streams of water upon his land in the manner stated, even though the damage was merely nominal. Otherwise, a right by prescription might be gained. Jackman v. Arlington Mills, 137 Mass. 277, 283. Hooten v. Barnard, 137 Mass. 36. But no such action was brought; and the question is, whether such an action must be brought within six years from the defendant’s original wrongful act, or whether the injury is to be treated as a continuing one, for which the defendant may be held responsible after the expiration of six years':
If the defendant’s act was wrongful at the outset, as the jury have found, we see no way in which the continuance of its structure in its wrongful form could become rightful, as against the plaintiff, unless by release or grant, by prescription, or by the payment of damages. If originally wrongful, it has not become rightful merely by being built in an enduring manner. That which was a nuisance at first does not lose its character as such by being continued for six years, whatever effect the lapse of time might have upon equitable remedies for its removal; and the maintenance of a structure which will continue to cause a wrongful diversion of water upon the plaintiff’s land, in quantities varying with the seasons, is a continuing nuisance, and an invasion of the plaintiff’s right from day to day, and he may select his own time for bringing an action therefor, and he is not barred by the lapse of six years from the erection of the structure. The case falls within the ordinary rule applicable to cou
In Fowle y. New Haven & Northampton Co. 107 Mass. 352, and 112 Mass. 334, a case in some respects resembling this, the •plaintiff had brought a former action in which he expressly declared for prospective damages, and he was allowed by the court to recover them, apparently without any objection on this ground from the defendant; and if he had been allowed to hold his second verdict, he would have got double damages, which clearly was not permissible. The decision of that case does not necessarily imply that an action must have been brought within six years, or if it does, we cannot follow it; and we have no occasion to consider whether ordinarily prospective damages would be recoverable in such a case or not. No question of the measure of damages is before us.
Nxceptions overruled.