Cavanagh v. Durgin , 156 Mass. 466 ( 1892 )

Morton, J.

The acts of the defendants of which the plaintiffs complain were the building of a dam, and the digging of a trench upon their premises. These acts were unlawful and constituted a trespass, and the plaintiffs could at any time have removed the dam and filled up the trench. Cavanagh v. Boston, 139 Mass. 426. The defendants could not have entered to do either without being guilty of another trespass. The damages which the plaintiffs were entitled to recover, therefore, were the expenses of removing the dam and filling up the trench, and of restoring the premises to their former condition, and the loss of the use of them during the time which this would reasonably require. Loker v. Damon, 17 Pick. 284. Sibley v. Hoar, 4 Gray, 222. Holt v. Sargent, 15 Gray, 97. Miller v. Mariner’s Church, 7 Greenl. 51. These would be the direct and proximate results of the acts of the defendants.

Instead, however, of removing the dam and filling up the trench, the plaintiffs sought to recover damages of the city of Boston for what the defendants had done. But this court held in Cavanagh v. Boston, ubi supra, that the city of Boston was not liable. The plaintiffs do not now contend that they are entitled to recover of the defendants damages as for a permanent obstruction of the premises, but contend that, having sought with reasonable promptness and in good faith a remedy for the wrong for which it turns out the defendants are liable, they should be allowed to recover of them, in addition to the expense of removing the dam and filling up the trench, for the loss of the use of the premises to the date of the writ in this case. But the fact that the plaintiffs mistook their remedy cannot enhance the damages for which the defendants are liable. The plaintiffs were presumed to know the law, and the delay was due to their own error, and not to any fault on the part of the defendants. We think, therefore, in accordance with the report, the entry must be,

Judgment on the verdict, with interest, and it is so ordered.^*

* A similar decision was made on the same day in Suffolk in the case of John Cavanagh & another vs. Elmer A. Messinger & another.

The report by Barker, J. recited a state of facts almost identical with that recited in the above case of Cavanagh v. Durgin, except that it appeared that Henry M. Wightman, the defendants’ testate, entered upon the plaintiffs’ premises, made surveys to find the location of the dam, and prepared plans and specifications therefor, and made contracts with Whitcomb and Edwards for the construction of the dam. The auditor found that “ Wightman had direct supervision and control of and over the work of building this dam, and that he did thereby trespass upon the close of the plaintiffs, as they have declared.” The requests for rulings and the rulings given were similar to those in Cavanagh v. Durgin, ante, 466.

This case was argued by the same counsel as in that case.

Morton, J. This case is governed by the case of Cavanagh v. Durgin. In accordance with the report, the entry must be,

Judgment on the verdict, with interest.