McClellan v. Fisher , 82 Mass. 185 ( 1860 )

Chapman, J.

The complainant may maintain this process to recover damages occasioned by raising the dam above the height established by the award. The respondent is not by the terms of the award entitled to raise the dam to a greater height than that which is therein established; but it leaves the parties to their legal rights under the mill acts. In the conveyance of Leland to the complainant, no reservation is made of any estate, but merely of the right to receive to his own use such damages as may be recovered by a legal process. But the estate being conveyed, the process must by the statute be brought by the grantee, he being the owner of the estate. The respondent has no interest in the question whether the complainant can retain the damages to his own use, or is obliged to account to Leland for them.

Respondent defaulted; warrant for a jury to issue.