Thompson v. Moore , 84 Mass. 350 ( 1861 )

Bigelow, C. J.

The injury of which the plaintiff complains does not come within those for which a remedy is provided by the mill acts. Gen. Sts. c. 149. The scope and purpose of that statute are to provide a specific mode of redress for those who sustain damage by reason of the erection of a dam to raise a head of water whereby their land is, in the words of the statute, “ overflowed or otherwise injured.” The latter clause, literally interpreted, is certainly broad enough to cover every species of injury or damage which might arise from the erection and maintenance of a dam. But, looking at the original design and intent of the legislature in enacting laws for the support and regulation of mills, and taking into view the successive acts which have been passed in pari materia, it is clear that the remedy thereby provided is intended to be confined solely to cases where land is overflowed by raising a head of water, and to the incidental and consequential damages which necessarily and naturally arise therefrom. This is settled by a series of adjudicated cases. For all other injuries the remedy at common law still remains, and the party sustaining damage can maintain an appropriate action to recover it. Hill v. Sayles, 12 Met. 142. Andover v. Sutton, Ib. 182. Eames v. N. E. Worsted Co. 11 Met. 571. Murdock v. Stickney, 8 Cush. 116. In the case at bar, the whole injury alleged by the plaintiff arises not from an overflow of water occasioned by the dam of the defendants, but from a diversion or withholding of it from the course or channel through which it ought to flow to the premises of the plaintiff. Such an act is not the usual, ordinary or necessary result of the erection of a mill, and was not intended to be comprehended in the class of cases to which the mill acts are applicable. The plaintiff therefore is entitled to maintain his action at law to recover damages for an act of the defendants which he has proved to have been unlawful.

Exceptions overruled.