Inhabitants of Woburn v. Henshaw

Ames, J. The only matter that seems to be in controversy between these parties is the question whether the defendant was the person bound by law to keep the bridge in repair. It is established by the verdict that its decayed and unsafe condition was the sole cause of the accident. The jury have found, under instructions which appear to have been correct, that the highway was of earlier date than the canal. The owner of the soil traversed by the highway had a right to construct a watercourse across it, subject to the limitation that in so doing he was bound at his own expense to make and keep in repair a way over the watercourse for the convenience of the public; in other words, to construct and maintain a suitable bridge. This familiar and well settled rule of law does not in our opinion grow out of the feudal tenure, or of any peculiarity in the laws of England in relation to the duties of parishes, as argued by the defendant’s counsel, but results, as we think, from the fact that the public right is a mere easement, and the owner of the soil, as such, can lawfully do anything upon it that does not interfere with the public easement. Perley v. Chandler, 6 Mass. 454. Adams v. Emerson, 6 Pick. 57. The canal was constructed to furnish water power for the mills, which at the time of the accident belonged to the defendant. He wTas not the owner of the soil under and adjoining t e. highway, or the canal, in the vicinity of the bridge, which the case finds was about a third of a mile from the mills. The owners of the land through which the canal flowed had sold lots [199] of land to various purchasers at the place where the water power was to be applied, and in the deeds of conveyance had defined the proportions in which the grantees were to enjoy the use of the water, and also the proportions in which the expense of the necessary repairs upon the canal was to be divided between them. When all these various titles to the mill property met and were united in the defendant, he held the whole subject to the express obligation that he should pay for all necessary repairs upon the canal. It was manifestly and visibly ah appendage of the mills, and the jury have found that he occupied and used it, and kept it in repair. Substantially it was his canal. The owners of the soil over which it flowed had no right to obstruct or divert the water. The easement, if it should be so considered, was exclusively his, and it was his use and occupation of the canal which created the necessity for maintaining the bridge and keeping it in good condition. If he occupied and used the canal, he also occupied that portion of the highway which was traversed by it, and apparently became subject to the same liability as if he were the original owner of the canal, and builder of the bridge at that point. Perley v. Chandler, 6 Mass. 454. Lowell v. Spaulding, 4 Cush. 277. Milford v. Holbrook, 9 Allen, 18. But however this may be, the title deeds under which the defendant holds his property in the mills make him chargeable with the expense of keeping the canal in repair, and it would be a very narrow and literal construction of the language to say that this stipulation applies only to the sides and bottom of the canal, or means only that the water is to be confined to its proper channel. It includes more properly all parts of the canal, and everything that is indispensable to its beneficial use. The bridge is substantially a part of the canal, and without it the canal would be an encroachment on public rights and liable as such to be filled up. The deeds do not in terms say that he shall personally make the repairs, but merely that they shall be at his expense. The jury find that after his purchase he made the repairs on the bridge, and they were rightfully instructed that, if he did so, it was sufficient evidence that he was [200] maintaining it. Why was it not a practical construction of the deeds under which he holds his title, and an undertaking to do personally what if done by others would still be at his expense ? There was evidence before the jury upon which in ara judgment they were authorized to find that the defendant’s son was hie general agent, and acting with his sanction in taking charge of the real estate and making repairs upon it and the canal. The special findings of the jury, which were rendered under instructions sufficiently favorable to the defendant, fully justify the conclusion that the defendant had assumed the support of the bridge and was the party bound by law to keep it in repair. Gen. Sts. c. 44, § 26. Commonwealth v. Deerfield, 6 Allen, 455, and 2 Inst. 700, there cited. The fact that he occupied the canal, and in so doing occupied that portion of the highway which was crossed by it, together with the express language of his title deeds, taken in connection with the fact of actual repairs upon the bridge by his authority, is quite sufficient to fasten upon him the legal liability, unless explained or rebutted. The alleged defect in one of the defendant’s title deeds (from Choate’s assignee) is not material, in this case. Even if the deed should ultimately prove wholly invalid, it is enough for the purposes of this trial that the defendant is in possession, claiming title, and to all appearance actually seised, controlling the property, and treating it as his own, without objection or adverse claim from any quarter. The objection that the defendant was wrongfully compelled to undergo a cross-examination as to what he said to his counsel cannot be sustained. The policy of the law will not allow the counsel himself to make disclosures of confidential communications from his client; but if the client sees fit to be a witness, he makes himself liable to full cross-examination like any other witness. This is true even as to defendants in criminal cases. Commonwealth v. Mullen, 97 Mass. 545. Judgment on the verdict