Babbitt v. Safety Fund National Bank

Knowlton, J. The evidence tended to show, and the jury found, that the plaintiff was the owner of land adjacent to a watercourse; that the defendant owned land through which the water flowed after passing the premises of the plaintiff; that the defendant was under a contract with the Putnam Machine Company, from whose mill the water flowed through the watercourse over the defendant’s land, not to put any building or other erec [373] tion on the defendant’s land in such a way as to interfere with the flow of the water, and that it constructed a grating across the watercourse near the line of its land, which obstructed the flow and set the water back upon the plaintiff’s land to her damage. That the plaintiff’s premises were so situated as to be likely to be injured if the water was set back, and that the defendant, under its contract with the Putnam Machine Company, owed a duty to the plaintiff and other landowners similarly situated, was not questioned. The evidence tended to show that the grating constructed by the defendant would not have materially obstructed the flow of water if the water had. been clear, and that the trouble came from rubbish, including a piece of canvas, that accumulated on the grating and prevented the passage of the water. The only exceptions were to the instructions and the refusals to instruct in regard to the duty of the defendant in reference to substances floating in the water which were put there by third persons negligently or without right. The defendant contends that, under its contract with the Putnam Machine Company, it is not obliged to ■ provide for the flow of water in which rubbish thrown or carried into the stream without its fault is floating in such a way that it wotild accumulate and obstruct the flow if a screen were constructed to stop the passage of the rubbish. The presiding judge instructed the jury, in substance, that if the screen was an obstruction which might be expected to set back the water of the stream under such conditions as would be likely to arise, and as the defendant might reasonably anticipate and provide against, it would be no defence that these conditions arose from the negligent acts of third persons, without which the injury would not have happened. He left it to the jury to determine whether the defendant adopted a proper method of providing for the flow of water in connection with the foreign substances that were in it, and told them that if the defendant or its officers used the diligence of ordinarily prudent men under the circumstances they must return their verdict in its favor. We do not find that the rights of the defendant were prejudiced by the instructions given, or by the refusal to give the instructions requested. It was plainly the duty of the defendant to refrain from putting obstructions in the stream which [374] would be likely to set back the water in the condition in which, it might reasonably be expected to come, even though its condition might be caused in part by the negligence of other persons. Lawrence v. Fairhaven, 5 Gray, 110. Salisbury v. Herchenroder, 106 Mass. 458. McCauley v. Norcross, 155 Mass. 584. Smith v. Faxon, 156 Mass. 589. Although the watercourse was artificially constructed, it was rightfully located and maintained. The Putnam Machine Company had a right to have the water flow on without obstruction. The defendant had entered into a contract to refrain from obstructing it. Everybody whose property was liable to be affected by setting back the water had a right to exemption from disturbance by an interference with its flow. It is immaterial whether the plaintiff had acquired rights by prescription. The liability of the defendant in reference to obstructions caused by it which would naturally injure the plaintiff’s property was the same as it would have been if the parties had been riparian proprietors upon a natural watercourse. If there was any inaccuracy in any of the instructions, it did the defendant no harm. Exceptions overruled.