McNally v. Smith

94 Mass. 455

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1866
• Status: Published

Opinion

Chapman, J.

It appears by the declaration that the defendant had a right to erect his dam and flow the plaintiff’s land, under the statute for the regulation of mills; Gen. Sts. c. 149; and therefore that this action does not lie. Stowell v. Flagg, 11 Mass. 364.

The fact that there was a dwelling-house upon the land does not exempt the land from being flowed. The second section of the statute, exempting certain lands, does not include such a case.

The allegations as to the nuisance created by the water do not take the case out of the statute. For the nuisance alleged is a direct consequence of the flowing, and all damages for such nuisance can be recovered under the process provided by the statute. The case as stated in the declaration is unlike that of Eames v. New England Worsted Co. 11 Met. 570. In that case the alleged nuisance was not directly caused by the flowing, bu+ consisted of noxious and offensive smells proceeding from the land flowed, when not covered by water, by means of which certain uplands of the plaintiff, not reached or affected by the water, were rendered less valuable as building lots. This was held to be too remote to be within the scope of the mill acts The distinction between that case and this is obvious.

Demurrer sustained.