Jewell v. Gardiner

12 Mass. 310

Opinion

Parker, C. J.

We do not see any room to question the sufficiency of the defendant’s third plea in bar. He had a right to erect a dam across the stream, where he owned the land on both sides of the stream, as well as the land over which the stream flowed ; and he is answerable in damages only to such person as is prejudiced in some estate or right, which he lawfully enjoyed. Now it is plain, from the facts stated in the plea, and admitted by the demurrer, that the plaintiff had no right to stop the water above by a dam extending from shore to shore, he having no right to the northeasterly shore, but having trespassed upon the defendant in fixing his dam there. The defendant had a lawful right to take down the dam erected without his consent upon his premises ; and, having this right, it would be singular that he should be answerable for consequential damages, for the use of his own property, to one who had no title to the property supposed to be injured.

†

Defendant's plea good.

He had no right, however, to cause the water to flow back upon that part of the river belonging to the plaintiff Wright vs Howard, 1 Sim. & Stu. 190.

[See Tyler vs. Wilkinson, 4 Mason’s Rep. 397. — Ed.]