De Costa v. Massachusetts Flat Water & Mining Co.

Cope, J. delivered the opinion of the Court Field, C. J. concurring. This is an action to abate a nuisance, and for damages. The nuisance was caused by the digging of a ditch upon the land of the plaintiff. The Court ordered the nuisance to be abated, and awarded as damages a sum sufficient to pay the expense of filling up the ditch, and restoring the land to its original condition. In assessing the damages, the Court proceeded upon an incorrect basis, and, of course, arrived at an erroneous result. The plaintiff could not recover beyond the injury sustained, and it was improper to award compensation for an expense which might never be incurred. It is possible that the cost of filling up the ditch may far exceed any injury resulting from it in its present condition, and in that case it is not probable that the amount recovered would ever be used for that purpose. There are, undoubtedly, cases in which it is proper to allow prospective damages; but it is certain that the present case does not belong to that class. “ If the case be tort,” says Sedgwick, “ and the wrong done before suit brought, the plaintiff is not limited solely to the consequential damage which has actually occurred up to the trial of the cause, but he may go on to claim relief for the prospective damage, which can then be estimated as reasonably certain to occur.” (Sedg. on Dam. 109.) It is evident that relief of this character cannot be obtained, unless it appear that the party will be subjected to the particular loss or injury for which he demands compensation. The defendants failed to make out a defense under their plea of a parol license. The evidence upon that point was wholly insufficient, and our conclusion from it is, that no such license was in fact ever given. There is nothing in the record making it necessary to [618] examine the questions upon that subject so elaborately argued in the briefs of counsel. The only error is that to which we have referred; and to avoid a reversal on that ground, the plaintiff offers to remit the damages. This he has the right to do, and the judgment will, therefore, be modified in accordance with that offer. Thus modified, it will be permitted to stand, but the plaintiff must pay the costs of the appeal. Ordered accordingly.