Burnham v. Windham

Walker, J. The plaintiff’s evidence authorized a finding by the jury that the defendant did not, at the time of the injury complained of, manage and control the flow of water in its culvert in a reasonable manner, and that in consequence of its unreasonable mismanagement in this respect damage was inflicted upon the plaintiff’s property. After it was notified by the plaintiff that the water, which ordinarily would flow through the culvert, was forced back into her cellar, it had full knowledge of the existence of the cellar drain and of the stoppage in the culvert. There was evidence that the town, in the reasonable exercise of its control of the highway, could have removed the obstruction in the culvert and caused the water to flow from the cellar. This conclusion of fact, upon which the verdict was evidently based, authorized the instruction which was given, and to which no exception was taken, that the town was-bound to exercise reasonable care in maintaining the highway not to unnecessarily damage the plaintiff’s adjoining property. Clair v. Manchester, 72 N. H. 231; O’Brien v. Derry, 73 N. H. 198, 204; Elliott v. Mason, 76 N. H. 229. The fact that the plaintiff’s drain had served no useful purpose for many years does not show that it was unreasonable for her to-have such an outlet for water that might get into her cellar. It was a part of the construction of her house, which, upon knowledge by the defendant of its existence, it was bound to consider in constructing and maintaining its highway. At least, it was competent, for the jury to find that she was maintaining her premises in a. reasonable way. The contention that the plaintiff herself might have removed' the obstruction in the culvert if it was causing damage to her *105 (Groton v. Haines, 36 N. H. 388) is hardly entitled to serious consideration. It would be a somewhat novel doctrine to hold that it is a good defence for one sued for intentionally maintaining a. nuisance upon his land to show that the plaintiff might have entered and abated the nuisance. As there was no exception to the charge to the jury, the rule of' damages announced by the court must be deemed to have been satisfactory to the defendant; and as the case finds that there was evidence that the damages as found by the jury were caused after the defendant had knowledge of the situation and might have remedied the defect in the culvert, the defendant has no ground for complaint in this respect. Exceptions overruled. All concurred.