Vale Mills v. Nashua , 63 N.H. 136 ( 1884 )

The defendants discharged their public sewer upon the land and into the mill-pond of the plaintiffs. The stream of water upon which the plaintiffs' dam and mill-pond are established is a brook, and the natural outlet of the surface drainage of that part of the defendant city where the sewer is. At the trial it was found that the defendants are not riparian owners upon the brook, and have never acquired nor attempted to acquire the right to discharge the contents of the sewer into the plaintiffs' pond, or upon their land, by license, purchase, prescription, or the exercise of the right of eminent domain, and that no reasonable necessity exists for discharging the sewer upon the plaintiffs' premises. These findings leave nothing upon which a defence to the action could be made. The invasion of the plaintiffs' premises by the defendants, without right acquired by contract, prescription, or statute proceedings, and without reasonable necessity, cannot be justified by anything shown to the court. Whether reasonable necessity, if it existed, would be a defence, it is not necessary to consider in this case. The sewer is not a natural water-course (Bassett v. Salisbury M. Co., 43 N.H. 569), nor an artificial one established by prescription (Shepardson v. Perkins, 58 N.H. 354), but a new means of invading the plaintiffs' land, and using it as a cess-pool for the public benefit. Gilman v. Laconia, 55 N.H. 130; Parker v. Nashua,59 N.H. 402.

Judgment for the plaintiffs.

CLARK, J., did not sit: the others concurred.