Hinckley v. Nickerson

Wells, J. One, through whose land a stream of water flows is not liable to an action at law for using the water in a reason [215] able manner for any purpose for which he has a legal right to use it. Under the St. of 1866, e. 206,* the defendant had a legal right to maintain a dam for the purpose of flowing and irrigating his land for the cultivation of cranberries. Neither the provision that “no such dam shall be erected to the injury of any mill lawfully existing, either above or below it, on the same stream; ” Gen. Sts. c. 149, § 2; nor any right which may be acquired for an ancient mill by prescription, prevents the erection of works above, upon the same stream, which are reasonably adapted to the size and character of the stream, although their effect may be to modify or disturb somewhat the regularity of the flow of the current. Gould v. Boston Duck Co. 13 Gray, 442. Pitts v. Lancaster Mills, 13 Met. 156. To maintain an action of tort, at common law, whether as landowner or as mill-owner, the plaintiff must show that the defendant’s dam is not reasonably adapted to the size and character of the stream, or that the extent of meadow which he undertakes to flow is too great for its capacity, or else that he has so used or managed his gates as to cause an unreasonable detention. Neither of these propositions is set forth in the declaration in this case, or is found in the report. The report expressly states that “ it was agreed that the water was not detained by the defendant for a longer time than was reasonably necessary for the purpose of flowing his meadow,” and it is not contended that the defendant’s meadow was too large to be flowed by this stream. The plaintiff seeks to recover on two grounds. First, that any obstruction to the free passage of water to his ancient mill, whereby its valuable use is diminished, is a violation of his rights as such mill-owner. But an ancient mill cannot prescribe against the reasonable use of the stream above. Its prescriptive rights are exclusive only so fat as its actual appropriation extends. Second, that, as between several owners of cranberry meadows, the exclusive appropriation of the water for several days by one, during the time when it is equally necessary for each, is an improper exercise of the common right, for which one who suffers damage may recover the same. But the statute having author [216] ized the defendant’s dam as a proper mode of exercising the common right, whatever incidental effects may result from it, not recoverable under the provisions for compensation, Gen. Sts. e. 149, § 4, must be held to be damnum absque injuria. Judgment for the defendant. Footnotes [*] For the provisions of this chapter, see ante, 213.