Talbot v. Whipple

73 Mass. 122

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

Opinion

Thomas, J.

1. The first question submitted to us in the report is, in substance, whether the defendant may rightfully maintain the arched bridge.

We are of- opinion that he cannot. The referees find that “ the bridge greatly obstructs the river in high water, and is a nuisance, and injurious to the plaintiffs’ mill privileges above.”

Upon the facts stated, it would be difficult to say that the county could erect and maintain such a bridge. In constructing the way over the plaintiffs’ watercourse, suitable provision should have been made for the passage of the water, so as not to obstruct the plaintiffs’ mill. Perley v. Chandler, 6 Mass. 454. Rowe v. Granite Bridge, 21 Pick. 344. Perry v. Worcester, 6 Gray, 544. If then the defendant had all the right of the county to maintain the bridge, he might yet be liable for the continuance of 'a nuisance.

But he, in fact, bought only the material of the bridge; the stone, and not the legal structure, or any right to maintain it. The bridge, as such, the county neither had the right nor assumed to sell. The plaintiff became the owner of the stone; the right of way, the public easement, having ceased. A reasonable time for its removal might elapse before the defendant would be liable; but after the lapse of such reasonable time the defendant had a structure on his own land, the material of which he owned, and which was in fact and in law a nuisance to i the plaintiffs’ mill above. That nuisance the plaintiffs might lawfully have removed. For the injury which it occasions, the defendant is liable.

2. The defendant, at different times, from 1822 to 1848, removed natural obstructions from the river, namely, stone, just above said arched bridge. Such removal was beneficial to the plaintiffs’ mill, and the defendant claims that such benefit is legally available to him, as a compensation for the damage caused by his dam and the arched bridge. Whether it is so or not, is the second and last question, submitted in the report.

There is a seeming equity in this claim. Yet it is plain, as matter of law, that it is no answer to a nuisance to my neighbor’s right, to say, I had before done him a benefit, even on the same land. The law, in the matter of nuisance, has no doctrine of set-off or recoupment. The clearing of the bed of the river, and the erection of the bridge and its maintenance, were wholly distinct acts, having no connection in time or fact.

Where the acts are part and parcel of one operation, and done at the same time, the result claimed might be reached, but not strictly in the way of compensation. As if, for the building of a dam, a party removes a ledge of rock from the bed of the stream above its site, and the effect is, that with the dam the water is set back no higher on the mill above than before, no injury is done to the mill-owner above; the water in the stream is not raised bv the joint result of acts that were part of one and the same operation. But where, as in the case before us, the acts are separate and distinct, there can be no balancing and setting off of benefit and injury.

It was suggested by the plaintiffs, that the one class of acts ought to be no compensation for the other; because the plaintiffs would have no assurance that the defendant might not, at any time hereafter, restore the obstructions to "the bed of the stream. We have not felt that the case could rest on this ground; because if he would ordinarily have such right, which is by no means clear, yet the judgment upon the award in this ease, and upon the facts in the record, would conclude him.

Judgment upon the award for the plaintiffs.