Fowle v. New Haven & Northampton Co.

107 Mass. 352

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1871
• Status: Published

Opinion

Gbay, J.

The embankment of the defendants was a permanent structure, which, without any further act except keeping it in repair, must continue to turn the current of the river in such a manner as gradually to wash away the plaintiff’s land. For this injury the plaintiff might recover in one action entire damages, not limited to those which had been actually suffered at the date of the writ. And the judgment in one such action is a bar to another like action between the parties for subsequent injuries from the same cause. Troy v. Cheshire Railroad Co. 3 Foster, 83. Warner v. Bacon, 8 Gray, 397, 402, 405.

This case is not like one of illegally flowing land by means of a mill-dam, where the damage is not caused by the mere existence of the dam itself, but by the height at which the water is retained by it, according to the manner of its use from time to time, as in Staple v. Spring, 10 Mass. 72, and Hodges v. Hodges, 5 Met. 205. Nor is it the case of an action against a grantee who, after notice to remove it, maintains a nuisance erected by his grantor, as in McDonough v. Gilman, 3 Allen, 264, and Nichols v. Boston, 98 Mass. 39.

The objection that the plaintiff could not recover for damages sustained since bringing his former action was therefore well taken; and as this objection is fatal, it is unnecessary to consider the other exceptions alleged.

Exceptions sustained.