Bearse v. Perry

117 Mass. 211, 1875 Mass. LEXIS 194

Opinion

Wells, J.

The ditch, of which the plaintiffs complain, was dug by the defendant, upon his own land, in 1861. The report states that no water would flow through it “ unless the water in the pond was raised to more than its ordinary height.” At that time the plaintiffs had raised the water of the pond to more than its ordinary height by means of their dam and flume at the natural outlet. But, as the dam was not raised for working a mill, they had no authority by statute for so maintaining it; and' they had acquired no right by length of user. The statement of the report that it “ was put in a little more than thirty years ago,” cannot be taken to establish affirmatively its maintenance for twenty years prior to 1861. There was no interference, therefore, with any legal right of the plaintiffs. The defendant did nothing which would divert the water from its accustomed flow, or withdraw it from the banks which contained it in its ordinary and natural condition. He was not bound to maintain embankments to hold the water which the plaintiffs undertook, without right, to accumulate in the pond by the construction of their dam ; nor to abstain from excavations or other changes upon the surface of his own soil, which would not affect the stream or the pond in their natural condition. Storm v. Manchaug Co. 13 Allen, 10. Even if he did it for the purpose of withdrawing a portion of the water which was kept back and raised by the dam, the plaintiffs could make out no cause of action against him. The water itself was of common right. Neither of them could claim any exclusive title. The plaintiffs’ only right was the natural one to have the water flow as it had been accustomed to flow But for their own wrongful detention of the water, the defendant’s act would not have caused any diversion. It was the plaintiffs’ dam that threw the water into the defendant’s ditch.

The St. of 1866, e. 206,

Footnotes

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* gave the plaintiffs authority to maintain their dam. But it imposed no duty upon the defendant to furnish suitable embankments, or to restore the surface of his land by filling up his ditch so as to retain the water in the pond to its artificial height. Neither would the maintenance of the dam since 1861 perfect the right of the plaintiffs so to maintain it, as against the defendant’s mode of using his own land in the mean time.

As the action must fail upon this ground, we need not consider the question of boundary by the stream below, or of the respect-i ve rights of the parties therein.

Judgment for the defendant.

“ Any person who is the owner or lessee of a tract of land appropriated to the cultivation and growth of the cranberry, may erect and maintain a dam upon and across any stream not navigable, for the purpose of flowing and irrigating said land, upon the terms and conditions, and subject to the regulations, contained in chapter one hundred and forty-nine of the General Statutes; and the provisions in said chapter relating to mills and the flowage of lands shall apply to the respective parties under this act, so far as the same are properly applicable in such cases.”