Levi L. Brown Paper Co. v. Dean , 123 Mass. 267 ( 1877 )

Colt, J.

The injury to the plaintiff’s mills was caused by the. backwater of a dam on adjoining premises below. For such an injury, an action lies either against the one who erected the dam, or against subsequent owners or occupants who, after notice, continue to maintain the obstruction. Staple v. Spring, 10 Mass. 72. McDonough v. Gilman, 3 Allen, 264, 267. Nichols v. Boston, 98 Mass. 39, 43.

In the case at bar, the dam complained of was erected by Horatio N. Dean in his lifetime, while owner of the property, to supply water for the use of his tannery. The defendant had nothing to do with its construction. Before the time covered by the declaration in this case, Horatio N. died, and the defendant, having no title to the premises, became the agent of the present owners, and carried on the business at the tannery for their benefit under a power of attorney from them. During the time complained of, there was no change in the height or structure of the dam in question. It was a permanent structure, and the defendant had neither ownership, possession, nor such control as would authorize him to change or remove any such structure erected upon the premises by the owner. The defendant, by the power of attorney, was only employed to carry on the business of purchasing and tanning hides. There is no claim that the premises of which the defendant had charge, and which were not in themselves a nuisance by causing backwater, had become a nuisance by the manner in which the defendant had used them. The nuisance here was created by the dam itself.

The injury complained of is therefore not shown, by the facto reported, to have been caused by any act of the defendant, authorized or unauthorized, connected with either the erection or maintenance of the alleged obstruction. Carleton v. Redington, 1 Foster, 291. Noyes v. Stillman, 24 Conn. 15. Pillsbury v. Moore, 44 Maine, 154.

In Bell v. Josselyn, 3 Gray, 309, cited by the plaintiff, there was a positive act of negligence on the part of the agent who had charge of the building, from which the plaintiff suffered, and not from a nuisance created or maintained by the owners.

In Wamesit Power Co. v. Allen, 120 Mass. 352, all the defendants actively participated in the wrong charged.

Judgment for the defendant.