Atkins v. Witherell , 142 Mass. 482 ( 1886 )

Gardner, J.

The Superior Court determined, in 1880, that the present defendant maintained his dam higher than he had a right to maintain it in that part of the year between April 12 and November 1. It is evident that this adjudication did not go to the full extent of absolutely prohibiting the respondent from keeping his dam up during the summer months. It did not fix any height at which he' might keep his dam, nor did it award compensation to the complainant. Adjudicating that the dam was maintained during the summer months higher than he had a right to maintain it, was in effect saying that it was maintained higher than the respondent had a right to maintain it without compensation.

Under this complaint, in 1883, the jury established and regulated the summer height of the dam. By their verdict, the jury found and decided “ that the height of the dam, between the twelfth day of April and the first day of November next after, shall be established at its height as viewed October 16, 1883, and that it shall be left open a space of not less than ten feet in width.” The jury also fixed and determined the amount which should be paid annually to the complainant, as “just and reasonable compensation for the damages” occasioned by the dam, so long as it is used in conformity with the verdict. They also fixed a sum in gross which would be a just and reasonable compensation for all damages occasioned by such use of the dam, “ and for the right of maintaining and using the same forever in manner aforesaid.” After the verdict, the complainant elected to take the gross sum assessed by the jury for future damages, and it was paid him by the respondent.

At the trial of the present action, it became material to determine what construction should be put upon this verdict. The plaintiff contends that the verdict must be construed to mean that the dam shall be kept open for the free passage of the stream during the summer months; that during those months the water should flow unobstructed, and that the dam should be left open for a space of ten feet throughout its whole height. This construction is clearly inconsistent with the verdict. If the dam was lowered so that the water would flow unobstructed in its natural channel, it is difficult to see how the plaintiff was injured, and for what he was entitled to compensation for future damages. The jury determined that, during the summer months, the dam was to be established at the height which the jury found it to be on October 16, 1883; and that the opening of the dam above this height was to be ten feet wide. It does not mean that this opening of ten feet wide was to extend from the top of the dam to its bottom, so that the water would flow in its natural channel, without obstruction. The jury, under the Pub. Sts. c. 190, §§ 3, 17,- had the right to establish and regulate by their verdict the height at which the dam might be maintained during the summer months. Brady v. Blackinton, 113 Mass. 238. This verdict was obtained by the plaintiff in the present action, and acquiesced in by him. He received the money which the jury awarded him as full compensation in gross. Without determining whether the plaintiff “ is estopped, as against the defendant, to deny that that for which he took his money was rightly adjudicated,” we think that the construction put upon the verdict by the Superior Court was correct.

Exceptions overruled.