Middlesex Co. v. City of Lowell , 149 Mass. 509 ( 1889 )

Holmes, J.

The defendant has built sewers which discharge into the plaintiff’s mill-pond, and which contribute constantly, materially, and appreciably to a deposit at the bottom of the pond, and to unhealthy gases which arise from the deposit. It does not appear that the defendant ever took any part of the plaintiff’s land or of its water rights by eminent domain, or that it acted under any statute. It follows that the plaintiff is entitled to the injunction, unless the defendant has acquired a prescriptive right to discharge through its sewers upon the plaintiff’s land substantially the amount which it now discharges there.

As to that, the causes of the nuisance in its present form, so far as the defendant is responsible for them, existed only to a very small extent, if at all, before the public introduction of water, in 1873, and the trouble has been slowly growing worse ever since that time. It is suggested, that, when the first sewer was built, in 1841, the plaintiff might have contemplated the present result. But at that time there was no water. And further, prescriptive rights are measured by the extent of the actual adverse use of the servient property, not by the extent of the threats of the dominant owner. Kenison v. Arlington, 144 Mass. 456, 457, 458. Horner v. Stillwell, 6 Vroom, 307. See Goldsmid v. Tunbridge Wells Improvement Commissioners, L. R. 1 Ch. 349, 352. It was not argued that the plaintiff was estopped by the fact that it did not seek for an injunction when the sewer first was built. Morse v. Worcester, 139 Mass. 389, 392.

The plaintiff is entitled to an injunction. Boston Rolling Mills v. Cambridge, 117 Mass. 396. Haskell v. New Bedford, 108 Mass. 208. If it should be necessary to allow a reasonable delay in order to enable the defendant to comply with the order of the court, that will be considered by the single justice in framing the decree. Attorney General v. Colney Hatch Lunatic Asylum, L. R. 4 Ch. 146. It does not appear what percentage of the deposits lias been caused by the defendant, but it does appear that only a part of them has been so caused. The burden of removing the whole ought not to be thrown upon the defendant. See Buddington v. Shearer, 20 Pick. 477, 479; Chipman v. Palmer, 77 N. Y. 51; Little Schuylkill Navigation Co. v. Richards, 57 Penn. St. 142 ; Wood v. Sutcliffe, 16 Jur. 75.

Injunction to issue.