Fuller v. Chicopee Manufacturing Co. , 82 Mass. 46 ( 1860 )

Merrick, J.

It is obvious that as an immediate consequence of the erection of a dam and raising a head of water, a landowner may sustain damage, beside the injury done to the land overflowed; as by obstructing his ways, cutting him off from convenient access to parts of his lands, disturbing the relation of one part to another. And it is possible that he may in like manner receive benefits from the same cause, that of raising and flowing the water, by the irrigating and fertilizing of an arid plain, giving him watering places in pastures where he had none before. The statute puts it as a case which may, but is not likely to, happen. “ The jury, in estimating the damage to the land of the complainant, shall take into consideration any damage occasioned to his other land by the dam, as well as the damage occasioned to the land overflowed, and they shall also allow, by way of set-off, the benefit, if any, occasioned by such dam to the complainant, in relation to his said lands.” Rev. Sts. c. 116, § 15. It was for injuries and benefits like these that this statute was intended to provide, when it declared, in § 4, that “ any person whose land is overflowed or otherwise injured by such dam may obtain compensation therefor.” The rule therefore to be derived from the statutes, construed together, seems to ac, to estimate the pecuniary loss arising to the proprietor from the direct injury done to his estate, taken as a whole, by flowing, deducting therefrom any benefit which may be done to the same estate by the same cause, namely, by flowing. Palmer Co. v. Ferrill, 17 Pick. 58.

The manifest object of this remedial statute is to secure to a land-owner, whose land has been flowed or directly damaged by water raised by a dam for mill purposes by another on his own land, a fair and adequate compensation for the damage arising directly from that cause. The law does not justify an allowance for remote, possible or speculative damages, or damage to any other subject than land, or by any other means than raising water by a dam for mill purposes. The rule admits all direct damage by raising water upon a complainant’s land, or preventing all valuable growth, or by saturating it so as to render it unfit to produce good grass, by separating one part of the complainant’s land from another, so as to render bridges or causeways ' necessary, or other direct damage. The jury were therefore properly allowed to consider the injury to the well and to the cellar of the dwelling-house on the premises, in their estimation of damages which the complainants were entitled to recover. But the complainants seek further to recover for damage done to other lands, uplands not reached or affected by the water raised by the dam, but in consequence of noxious and offensive smells, proceeding from the land flowed when not covered by water, by means of which such uplands are rendered less eligible and valuable as building lots. This is too remote, and not within the scope of the mill act. Eames v. New England Worsted Co. 11 Met. 570. Verdict set aside.