Vaugh v. Wetherell

Wells, J. That a mortgagor is entitled, exclusively, to the damages to the land caused by flowing while he is in possession, was decided in Paine v. Woods, 108 Mass. 160. It follows inferentially, if not necessarily, from that decision that his right ceases when possession is taken from him by the mortgagee. From that time the mortgagee becomes entitled to recover and receive the damages. But the mortgagor is not thereby deprived of his right to past damages suffered while he was in possession; and may maintain proceedings under the mill act for their recovery, notwithstanding the fact that his right of possession has since, and before suit, been terminated. Walker v. Oxford Woollen Manufacturing Company, 10 Met. 203. It is equally clear that a mortgage title in the respondent furnishes no defence, so long as, by the terms of the mortgage, he is restricted from the right of possession. The complainant in this case is therefore entitled to maintain his suit, and to have a jury to assess his past damages, at least so far as they occurred before breach of the condition of the first mortgage; to wit, November 18, 1871. The question of the complainant’s right to recover for the time after breach, and before he was dispossessed under the second mortgage, has also been discussed; and as its decision now will [140] facilitate the final disposition of the case in its next stage, we proceed to announce our conclusion thereon. It is true that the mortgagee has the legal title and right Ot present possession, if he sees fit to exercise that right. But flowing the land by means of a mill dam is not an exercise of any right of possession or of ownership. The injury is an incidental result of the exercise of riparian rights annexed to other lands upon which the mill and dam are situated. The damages recoverable therefor belong to the mortgagor while he is suffered to remain in possession, by virtue of that possession, like other annual products. Paine v. Woods, supra. The mortgagee cannot be held to account for and apply them towards payment of his mortgage debt, because he is held to render an account of rents and profits only when he has had possession under his mortgage. Gen. Sts. c. 140, § 15. And even if they were applicable towards payment of the mortgage debt, there is no mode in which the amount can be legally ascertained except by this proceeding. The mortgagor is therefore utterly without remedy unless he can have it in this mode. We are of opinion that he may have his damages assessed for the whole time during which he held possession, within the limit of the three years, and may recover the same against this respondent, notwithstanding the fact that the latter was the holder of a mortgage upon the premises flowed. Exceptions sustained.