Hosmer v. Warner

73 Mass. 186

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Bigelow, J.

The principles laid down and illustrated in Bacon v. Charlton, 7 Cush. 581, are decisive of the question raised in this case. The tender by the respondent of a certain sum for past damages, and a further sum for future annual damages, under the Rev. Sts. c. 116, § 41, was a technical admission of everything which the complainants might otherwise have been compelled to prove in order to entitle themselves to a warrant for a jury to assess their damages. After such tender, the respondent could not rely on his plea in bar. He was estopped to deny the right or interest of the complainants in the land alleged to be flowed, and to assert his own right to maintain his dam, without compensation to the complainants, at the height to which it was raised when the flowing took place. The only question open between the parties, after the tender, was the amount of damages; and the complainants, not having accepted the sum tendered, but electing to proceed in the suit to recover greater damages, were entitled to a warrant for a jury.

Judgment affirmed.