Amoskeag Manufacturing Co. v. Goodale

46 N.H. 53

Opinion

Bartlett, J.

*

After the numerous decisions in this State and elsewhere, we cannot now regard it as an open question, whether the defendant would have been entitled to recover nominal damages of the plaintiffs, if they by their dam wrongfully caused the water of the river to Sow back on his land perceptibly higher than its natural level, but without causing any actual damage to the defendant, for the " infringement of his right, which by repetition might ripen into an easement,” has been held a sufficient cause of action. Tillotson v. Smith, 32 N. H. 90; Woodman v. Tufts, 9 N. H. 91; Snow v. Cowles, 22 N. H. 302; Cowles v. Kidder, 24 N. H. 379 and 382; Bassett v. Salisbury Co., 28 N. H. 455; Gerrish v. Newmarket Co., 30 N. H. 484; 2 Hill. on Torts 115, 126; Angell on W. C., 330, 340; Washburn on Easements 569; and see Bassett v. Salisbury Co., 43 N. H. 578 and Eastman v. Amoskeag Co., 44 N. H. 159.

Where a party can maintain an action for a nuisance, he may enter and abate it; Baten's case 9 Co. 54 b.; 3 Blk. Com. 220; 2 Hill. on Torts 94 and 97 n, and Brown v. Perkins, there cited; 1 Hill. on Torts 147; Great Falls Co. v. Worster, 15 N. H. 438; Angell on W. C. sec. 389, and see Groton v. Haines, 36 N. H. 394; even though at the time it caused but nominal damage to him; Great Falls Co. v. Worster, 15 N. H. 434; Penruddock’s case 5 Co. 101 b.; Adams v. Barney, 25 Vt. 231; Greenslade v. Halliday, 6 Bingh. 379; Washburn on Easements, 582, 584, Com. Dig. "Action on the case” D. 4.; Angell on W. C. sec. 390.

Although in general an erection cannot be abated as a nuisance unless it be such at the time; Great Falls Co. v. Worster, 15 N. H. 442; Washburn on Easements 583; Angell on W. C. secs. 140, 390: yet an erection may be a nuisance at a time when it is causing no actual damage; Fay v. Prentice, 1 C. B. 828, Broom’s Leg. Max. 290 and 292; andsee Beach v. Trudgain, 2 Gratt. 219;and might have been abated a nuisance on a quod permittat; Baten’s Case 9 Co. 53 b.; or by the party whose rights were infringed. Penrudddock’s case 5 Co. 101 b. The remarks of Best. C. J. in Lonsdale v. Nelson, 2 B. & C. 302, cited by the plaintiff, -were made in reference to " nuisances from omission ” only; and the expressions of Fowler, J. in Graves v. Shattuck, 35 N. H. 269, have reference solely to the necessity of the force used to the protection of the party’s property, and not to the general question of a party's right to abate a nuisance which causes him nominal damages.

The instructions of the court that the defendant would be justified in entering to remove the flash-boards wrongfully kept upon the dam only in case they caused him actual damage or made him apprehensive of immediate material injury were erroneous.

Whether a bad motive could make the defendant liable in this suit for an act which violated no right of the plaintiff, (see Pickard v. Collins, 23 Barb. 459,) we need not consider, for if his act was wrongful, it was competent for the plaintiff to show that it was malicious, as bearing upon the question of damages. Perkins v. Towle, 43 N. H. 220; Norris v. Morrill, 40 N. H. 402; Severance v. Hilton, 32 N. H. 293.

The plaintiffs’ charter gave them no right to flow the defendant’s land without his consent, Eastman v. Amoskeag Co., 44 N. H. 160, Hooksett v. Amoskeag Co., 44 N. H. 110, and for such wrongful flowage the defendant could still resort to his common law remedies. State v. Moffet, 1 Green (Iowa) 248; Renwick v. Morris, 7 Hill 577.

The verdict must be set aside.

Perley, C. J., and Bellows, J., having been of counsel did not sit.