McGenness v. Adriatic Mills

Devens, J. It is argued for the defendant that the evidence offered by the plaintiff wholly fails to sustain the amended count in the declaration, which was the one relied on, and which alleges a nuisance caused by erecting and maintaining a box drain and emptying filthy water by means of it upon the plaintiff’s estate. The allegation of a nuisance as charged is however sustained by the proof, notwithstanding the water conducted through the box drain may be the water of a natural stream, which, before it was thus confined, was accustomed to flow between the lands of the plaintiff and of another, which water is now conducted upon the plaintiff’s land, and notwithstanding the water thus conducted may have been polluted by the act of the defendant before it entered the drain. The gist of the plaintiff’s action is the nuisance created by the injury to the atmosphere and consequent danger to health that has been occasioned by confining water of this character in the drain and conducting it in such a manner that it has been caused to flow out upon and over his land. There was evidence of this in the case, and the plaintiff is not to be deprived of remedy for this injury to him in the occupation of his land, because he may have rights in the stream which would enable him also to maintain an action for diverting its waters so that he could not use them as he had been accustomed to do, or for polluting them so that they had been rendered useless or diminished in value for the purposes for which he had the right to enjoy them. The defendant was not therefore entitled to- the instructions requested, and that given by the presiding judge was correct. The remaining question is in reference to the admission in evi dence of the statement of the superintendent. The defendant is a corporation, and can only act through agents, and, in the absence of any evidence to the contrary, the superintendent in 181 charge of the mill must be deemed the proper person to whom to make complaint and to have authority to give information and direction in regard to the drainage from it. His recognition that it was a matter that required to be attended to and should be, was therefore properly put in evidence. Morse v. Connecticut River Railroad, 6 Gray, 450. The expression used by him, that he “ would not have it around his place as it was around there for $500,” was a mere mode of stating that the nuisance existed, and could not have been considered as an admission that this sum was the amount of the damages, nor do we understand that it was put in evidence as such. Exceptions overruled.