Roach v. Sturdy

Braley, J. This is a bill in equity by a riparian owner of an ice pond to restrain the defendants, who own and operate a jewelry factory with a dam which they control at the outlet of the pond, from permitting the water unnecessarily to flow from the pond in such volume as to destroy the plaintiff’s ice crop. The evidence not having been reported, the findings of fact are conclusive. It is found, that a public way forms a natural dam for the pond, and that the defendants have the right to flow the land under the pond and to control the wasteway of the dam by flash boards or planks. A public water main five feet below the surface ran through the way, and the defendants, who were installing a new sprinkler system, dug on January 10, 1924, a trench uncovering the main for the purpose of connecting it with the system by a six inch pipe. The connection was completed on January 12. But, in the performance of the work and to prevent water from passing into the trench, the defendant on January 8 or 9 removed, and did not replace after the work was completed, some of the planks at the wasteway, causing the pond, which in places is shallow and contains some rocks, to be lowered. The plaintiff floats the ice when cut to his ice house through a runway, and the lowering of the pond not only broke the ice around the rocks, but so diminished the water in the runway that the ice could not be floated to the ice house. The pond at certain times in the past has been so filled by freshets as to [359] require it to be promptly lowered to prevent overflowing the street, as well as to prevent water from entering the factory which is located in a hollow in land on the east side of the street. It is plain that the judge’s conclusion must stand: “ I find that it was not necessary, in order reasonably to protect the defendants against the danger of freshets or to guard against damage to the water main, that the planks which were removed from the wasteway on January 8 or 9 to enable the work of connecting the water pipes to be done should be kept removed after that operation had ceased on January 12 and during the following days when ice was making up on the pond and I find that, under the circumstances of this case, it was not a reasonable use by the defendant of the water in the pond to continue to draw it off after January 12 so as to interfere with the right of the plaintiff to harvest ice upon the pond during the ice-making season.” It follows, that, having suffered actual damage, the plaintiff is entitled to injunctive relief as prayed. Elliot v. Fitchburg Railroad, 10 Cush. 191, 197. Paine v. Woods, 108 Mass. 160, 173. Handforth v. Maynard, 154 Mass. 414. Taft v. Bridgeton Worsted Co. 237 Mass. 385; S. C. 246 Mass. 444. We discover no error in the interlocutory decree, the form of which was assented to by the defendants, and it is, Affirmed.