Ballard v. Ballard Vale Co. , 71 Mass. 468 ( 1855 )

Merrick, J.

The flowing of the complainant’s land by a dam, erected in and across the Shawsheen River for the purpose of raising a head of water wherewith to work their mill, is conceded by the respondents. Upon the statement of facts to which the parties nave agreed, it is clear that the complainant is entitled to recover compensation for the injury to which his estate has thus been subjected; and that a warrant ought to be issued to summon a jury to assess the damages for the three years next preceding the institution of the complaint, and from thence down to the time of the rendition of their verdict; and also to ascertain and determine the annual future damages, and what sum would be a just and reasonable compensation for all the damages to be thereafter occasioned by the use of the dam, and for the right of maintaining, keeping it up and using it forever. Rev. Sts. c. 116, § 4.

When the complainant took possession of the premises for breach of the condition contained in the mortgage, his title thereto was perfect against the world, excepting only the right of Marland, the mortgagor, and his assigns, to redeem the same. That right having never been exercised, and being now entirely foreclosed and extinguished, the complainant’s title is complete and unimpeachable. Ritger v. Parker, 8 Cush. 145.

The respondents have never had any interest in the premisei, except that which they derived from Marland, the mortgagor His deed to them was a mere quitclaim and release of all hi;i right, title and interest in the premises; and these consisted only of the right of redemption, and the right of possession previous to a breach of the condition of the mortgage. Of the forme) the respondents have never availed themselves; and of the latte) they have had the uninterrupted advantage and enjoyment—no claim being made for damages occasioned by the flowing before the time when the complainant entered upon and took possession of the premises for breach of the condition of the mortgage, and to foreclose the right in equity of redemption. The right of the respondents is now superseded by the paramount title of the complainant; and they have therefore no defence to set up against the complaint, and can show no reason why it should not be maintained.

It has been argued, for the respondents, that a mortgagor in possession has the power and right effectually to release and discharge a mill-owner from all claims for damages which have been or which may be occasioned to the mortgaged premises, either by the past or the future maintenance of the dam, used and to be used forever, for the purpose of raising water to work his mill. Without intending in any degree to sanction that proposition, as a principle of law resulting from a just interpretation of the provision of the statute for the support and regulation of mills, it is sufficient to say, that the determination of this question is not requisite in this case; for it does not appear that Marland has released or discharged, or even attempted to release or discharge the respondents from all the claims to which they were or might become liable by reason of the maintenance of their dam, and the consequent injury to the complainant’s land by overflowing it with water. It is true that, while he was in possession of the premises, he made a deed to them, granting, releasing and quitclaiming all his right, title, interest and estate in the land. But this was only a conveyance of the interest of the mortgagor in the land, and did not purport to be a relinquishment of any claim for compensation, even for the injury which he himself had sustained; much less for that which might be done to the right and interest of the mortgagee, whose title to the estate was superior and paramount to his own.

Before the conveyance to Marland, the respondents had acquired, by an absolute grant from the complainant, the unconditional right of flowing the premises by raising their first dam to certain fixed marks. It is to this right that the exception in the covenants in the complainant’s deed to Marland must, upon the facts stated by the parties, be construed as referring. This is the only license ever given by the complainant. It is a mistake to suppose that, by his deed to Marland, he conceded or conveyed to the respondents the further privilege of flowing all the land which was then in fact overflowed and covered with water, without their making compensation therefor according to law. There is nothing in the instrument to indicate any such purpose or intention. Sometimes a grant or conveyance is held to have the effect of a covenant by way of estoppel; but no such consequence has ever been attributed, or is attributable, to a refusal to enter into a covenant, or to assume the obligations of a warranty, against either an alleged or a possible incumbrance. By such refusal the complainant conferred no rights upon others, nor surrendered any upon which, in his own behalf, he had a right to insist.

Warrant for a jury to issue.