Phillips v. County of Middlesex

Ames, J. The claim of the petitioner was for damage done by the removal of the dam in March 1871, and the consequent loss or diminution of such water-rights as remained to his intestate after the waters of Spot Pond had been withdrawn and had ceased to furnish any part of the water supply at the dam. The witnesses called by the petitioner had been allowed to testify as to the value of the privilege at the dam at the time of its removal, “ embracing all the purposes for which it could be used.” The questions as to the actual expense of setting up a steam-engine with the necessary buildings and fixtures for the purpose of “ supplementing ” the power lost by the taking of Spot Pond, and what amount of power the steam-engine gave, were properly excluded. Whatever answer could have been given that would have been properly responsive to those questions’could have furnished only an indirect and circuitous, as well as uncertain, mode of estimating the amount of power remaining. What it had cost to substitute other power in place of what had been lost, and what amount of power had been in fact so substituted, would throw but little light upon the question as to the amount of power furnished by the dam after the taking of Spot Pond. In the exercise of his judicial discretion, the presiding officer might lawfully exclude the proposed evidence, for that reason. The evidence offered as to the lease to Cochrane and the rent which he paid was irrelevant, and was properly excluded. His lease was given, and his term had expired, before the waters of Spot Pond were withdrawn. The witness was allowed to testify as to the value of the use of the water in 1871, in the mode and upon the terms upon which he used it before that time, viz. for bleaching and dyeing purposes, and assuming it to be of the same quality. We do not see any way in which that lease and the rent reserved under it could throw any additional light upon the question as to the value of the privilege for such uses, without Spot Pond. [268] The witness, Barrett, had testified that, after the taking of Spot Pond, the town of Malden had furnished through service pipes the necessary supply of water at his bleaching and dyeing establishment, delivered on two floors. He was then asked what it had cost him to use the same quantity of Spot Pond water for one year that he had formerly from the stream below the dam. We fail to see how any answer to this inquiry could be material to the question as to the value of any water-rights affected by the removal of the dam, after the Spot Pond waters had been excluded. With regard to the remaining point, we do not find it necessary on this occasion to consider the question to what extent and under what precise circumstances the declarations of counsel are to be considered as binding upon their clients in the way of admissions. The previous statements in the present case were not made by an attorney in behalf of a client, but by the petitioner himself, in his own cause and on his own behalf, and were admissible as such under the general rule. As he was a party of record, it is immaterial that he was acting in a representative capacity. Faunce v. Gray, 21 Pick. 243. Judgment affirmed.