60 Mass. 412 | Mass. | 1850
By a special act of the legislature, (St. 1837 c. 189,) Abraham Hobart was authorized to erect a mill-dam across Monatiquot river, a navigable stream, in which the tide ebbs and flows. A dam was accordingly erected and a pond raised; and the petitioners, having become the proprietors, and being in possession of the premises and privileges, seek to recover damages from the respondents, among other things, for the injury done to their mill-pond and privileges, by constructing an embankment through and across the pond.
At the trial before the jury, evidence was offered tending to show, that the dam erected under the act of the legislature was not erected in conformity with the provisions of the act; and the sheriff was requested to instruct the jury, that if they were satisfied that the dam was not built in the manner specified in the act, they should allow nothing for damages to the pond raised by the dam. But the sheriff declined to direct the jury as thus requested. The court of common pleas set aside the verdict rendered under this ruling, on the ground, that the petitioners had acquired no rights to the pond, because the dam had not been constructed in conformity with the act of the legislature.
As the petitioners had succeeded to the rights of Hobart, we shall speak of them, as if they had been originally authorized to erect the dam. The ground assumed by the respondents, and upon which the verdict was set aside, is, in effect, that the petitioners have forfeited all right to their dam, because it was not built according to the provisions of the act. But surely the respondents can have no right to take the petitioners’ pond from them, because the dam was not constructed according to
A forfeiture can only be enforced by the government, ana that in a direct proceeding for the purpose, and once for all. The petitioners are not obliged to try the question of the forfeiture of their privileges, under the act of the legislature, collaterally and incidentally, with the respondents and every person who may trespass upon the possessions and privileges of the petitioners. If the petitioners have not complied with the condition of the act, the government may, if it thinks proper, enforce the forfeiture. But the government may also, if it thinks proper, waive the performance of the condition. If the government does not exact a forfeiture, individuals have no right to set it up and rely upon it. There may be a tacit waiver by the government of the performance of the condition, by not insisting on it. If the government leaves the petitioners in the undisturbed enjoyment of their privileges and property, it certainly is not for the respondents to set up a forfeiture, to protect themselves from responsibility for the damage they have done to the petitioners.
This principle is so fully established by the authorities cited by the petitioners, that it is not necessary to go into a more particular consideration of it.
Verdict established and certificate accordingly to the covmty commissioners.
