Jackman v. Mills , 137 Mass. 277 ( 1884 )

Field, J.

Of the requests for instructions by the defendant, the fourth and fifth relate to the pollution of the water, and the first and second to the increase in volume of the water in the watercourse.

The defendant waived at the argument the exception to the refusal to give the third instruction requested. It is manifest that the fifth instruction requested ought not to have been given, and the instructions given in place of it seem to be correct. As to the fourth request, the houses, drains, and wells were constructed and owned by the defendant, and were adapted to be used and intended to be used by the tenants in the manner in which they were used. The defendant cannot escape responsibility because it has let the houses, and, by the terms of the letting, retained no control over them. The right or authority to use the water from the wells in the houses, and to have it run off through the drains, was either given to the tenants by the letting, or was not; if not given, the defendant has the control of the water; if given, the defendant has authorized this use of the water. Prentiss v. Wood, 132 Mass. 486.

If the injury to the plaintiff resulting from the defendant’s unlawful pollution of the waters of the brook can be specifically ascertained, it is no defence that the plaintiff in some degree has also polluted the brook. Sherman v. Fall River Iron Works, 5 Allen, 213. Clarke v. French, 122 Mass. 419. Brown v. Dean, 123 Mass. 254. Crossley v. Lightowler, L. R. 2 Ch. 478.

The first request for instruction was too general; it was not even limited to such surface water as would have naturally flowed into the brook above the land of the plaintiff. We take the law to be, that the owner of land has no right to collect the surface water into an artificial stream, and discharge it upon the adjoining land of another in such quantities and in such a manner as materially to injure the land; but that such an owner has the right to collect the surface water and the natural drainage of his land into an artificial stream, and discharge it into a natural watercourse on his own land, if the watercourse is the natural outlet of the waters thus collected, even although, by this artificial arrangement, the flow of the waters is accelerated, and the volume at times is increased, provided that this is done in the reasonable use of his own land, and that the discharge is not beyond the natural capacity of the watercourse, and the land of a riparian owner is not thereby overflowed, and materially injured. But he has no right to subject the land of another to a servitude of running water to which it is not naturally subject. White v. Chapin, 12 Allen, 516. Curtis v. Eastern Railroad, 98 Mass. 428. Carter v. Thurston, 58 N. H. 104. Noonan v. Albany, 79 N. Y. 470. McCormick v. Horan, 81 N. Y. 86. Barkley v. Wilcox, 86 N. Y. 140. Hughes v. Anderson, 68 Ala. 280. This seems to be substantially the rule of law laid down by the presiding justice. The exception to the charge is general, and if, in the opinion of the counsel for the defendant, the charge ought to have been more definite, it was his duty specifically to have made the request.

The second request was made without any limitations as to the quantity of water from wells used for domestic purposes which might be turned into a natural watercourse. When land becomes thickly settled, the quantity of water from this source might be very large, and the whole or a considerable portion of it might be water that naturally would not flow into the watercourse. It seems to be settled that one riparian landowner has no right to turn into a natural watercourse another stream, or surface water which does not naturally flow into it, in such quantities as to so increase the volume of water in the watercourse that substantial injury is thereby done to a riparian landowner lower down. But to dig wells for domestic purposes is a reasonable use of land, and, although we have been shown no case directly in point, we are of opinion that the water drawn from such wells to the surface is like water artificially accumulated in the reasonable use which an owner may make of his land"; and that it may be turned into a watercourse which is the natural outlet of the drainage of the land, with the same limitation, namely, that the volume of water is not increased beyond the natural capacity of the watercourse to discharge it, and the lands of others adjoining the watercourse are not thereby overflowed. The instruction of the presiding justice was, that “ the water of wells dug upon the land of any person cannot be lawfully discharged upon adjoining land, to its injury, either by being mingled with surface water, or by being turned into a watercourse so as greatly to enlarge it.” The contention of the plaintiff was, “ that, in consequence of the acts of the defendant, the supply of water in the brook was increased to such an extent as to cause the brook to overflow its banks,” and to flow into the cellar of his house. The words in the instruction, “so as greatly to enlarge” the watercourse, are undoubtedly very indefinite, but the defendant’s counsel did not specially except to them. As his exception to the charge was general, if his requests for instruction ought not to have been given, he cannot, as of right, avail himself of any errors in the charge. Curry v. Porter, 125 Mass. 94.

The court, if it found the instructions given misleading, might in its discretion grant a new trial. But we are not satisfied that this instruction, taken in connection with the claim made, was misleading. If the effect of the acts of the defendant, by the use of wells and other artificial arrangements was so to increase the volume of the waters of the brook as to cause them to overflow the banks, and flow into the cellar of the house of the plaintiff, we cannot say that this was not an unlawful use of the brook. Exceptions overruled.