Aldworth v. City of Lynn , 10 L.R.A. 210 ( 1891 )

Knowlton, J.

This action is to recover damages for a use of the defendant’s premises which was injurious to the plaintiff’s adjoining land; or, in other words, for the maintenance of a nuisance. The plaintiff excepted to the ruling that she was entitled to recover damages only to the date of her writ, and contended that the dam and pond were permanent, and that she was entitled to damages for a permanent injury to her property. An erection unlawfully maintained on one’s own land, to the detriment of the land of a neighbor, is a continuing nuisance, for the maintenance of which an action may be brought at any time, and damages recovered up to the time of bringing the suit. Prentiss v. Wood, 132 Mass. 486. Wells v. New Haven Northampton Co. 151 Mass. 46, and cases there cited. That it is of a permanent character, or that it has been continued for any length of time less than what is necessary to acquire a prescriptive right, does not make it lawful, nor deprive the adjacent landowner of his right to recover damages. Nor can the adjacent landowner in such a case, who sues for damage to his property, compel the defendant to pay damages for the future. The defendant may prefer to change his use of his property so far as to make his conduct lawful. In the present case, we cannot say that the defendant may not repair or reconstruct its dam and reservoir in such a way as to prevent percolation, with much less expenditure than would be required to pay damages for a permanent injury to the plaintiff’s land. As was pointed out in Wells v. New Haven & Northampton Co., ubi supra, it appeared in Fowle v. New Haven & Northampton Co. 107 Mass. 352, and 112 Mass. 334, that the parties in a former suit had elected to treat the injury as permanent, and the plaintiff had accepted entire damages for the future as well as the past, and on that ground, which is adverted to in the last opinion, the case was well de- . cided. In Goslin v. Corry, 7 Man. & G. 342, 345, where a defendant, on the trial of an action for a libel, permitted evidence to be given of damage caused after action brought, Tindal, 0. J. said:

“ By permitting this evidence to be given, the defendant may possibly have escaped having a second action brought against him. It was, therefore, far from an impolitic thing to allow damages to be assessed for the whole cause of complaint in one action.” So far as there are intimations in the successive opinions in Fowle v. New Haven & Northampton Co. which seem to make the case an authority for the plaintiff’s contention in the case at bar, we are not inclined to follow them. The ruling was correct, and the plaintiff’s exceptions must be overruled.

The defendant excepted to the refusal of the court to rule “ that this action could not be maintained other than by petition.” No question was raised upon the form of the declaration, nor is the evidence reported. It is therefore to be assumed that the evidence was sufficient for the maintenance of the action, if such evidence could be legitimately introduced under the pleadings. The declaration set out a good cause of action at the common law. The defendant alleged in justification that the pond was made and maintained under the provisions of the St. of 1871, c. 218. If the defendant had shown that all due and reasonable precautions were taken in the construction and maintenance of the dam and reservoir, and that nothing was done wantonly or negligently, so as to cause unnecessary damage to the property of the plaintiff, the defence would have been made out. For all damages resulting from the proper exercise of the authority given the defendant by the statute the plaintiff’s remedy was by petition. But for damages resulting from a negligent or improper construction or maintenance of the dam and reservoir, the plaintiff might recover at the common law. It is to be assumed that the jury were so instructed, and that the evidence warranted their verdict. Mellen v. Western Railroad, 4 Gray, 801.

The testimony of the witness Mullen was rightly received. It was proper to show the condition of the land before the original dam was built, to assist the jury in determining whether the pond had affected its condition.

The paper offered by the defendant was incompetent. It did not show bias on the part of the plaintiff. The defendant’s exceptions must also be overruled.

.Exceptions overruled.