The record is the best evidence of the scope of the former condemnation proceedings. It *Page 463 shows that the land then sought to be taken was a parcel containing 3.28 acres bounded on three sides by other land of the applicant; that the appraisers were directed by the order appointing them, "to assess just damages . . . to the said Morris A. Beers by reason of any overflow upon his land due to the construction and maintenance of the said reservoir, and by reason of the taking of the following described land" — being the 3.28 acres; and that the committee by its report found that "the damages to said Morris A. Beers by reason of said overflow is $225, and that the damage for taking said 3.28 acres is $1,475, making a total of $1,700."
This record, in connection with the finding of the trial judge that the overflowing as it now exists existed at the time when the original condemnation proceedings were brought, fully justifies conclusion (a) of the trial judge, that by the payment of the damages then awarded the applicant was compensated for the overflow now complained of. This disposes of reasons of appeal one and eight, and so much of nine as relates to damages for the flooding.
Reasons of appeal two, four, five, six, seven and, in part, nine, relate to the ruling and conclusion of the trial judge in denying the claim for consequential damages presented in paragraphs six and seven of the application. On the findings summarized in the statement of facts, the appellant is compelled to concede that these allegations were not proved as alleged; that the action of the town health officer in issuing the orders which limited the use of the applicant's land was upon his own motion and initiative, and that the respondent took no action with reference to their issuance or enforcement, except that its superintendent called the attention of the town health officer to the fact that some of the orders which had been issued were not being complied with. *Page 464
The applicant's claim that paragraphs six and seven are sufficiently proved by the fact that the respondent was benefited by the orders in question, and interested itself in seeing that they were complied with, is wholly untenable when restated in terms of the facts found.
These orders were issued under authority of § 2545: "No person shall throw any noxious or harmful substance into such reservoir, lake, pond or stream, nor shall any person, after receipt of written notice from any county or town health officer having jurisdiction, that the same is detrimental to such water supply, suffer any such substance to be placed upon land owned, occupied or controlled by him, so that the same may be carried by rains or freshest, into the water of such reservoir, lake, pond, stream or drain, or allow to be drained any sewage from said land into such water. Every person who shall violate any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both."
No suggestion is made that the particular orders issued were for any reason invalid. The applicant was, therefore, maintaining a nuisance in violation of the statute when the respondent first intervened, as it was bound to do in the discharge of its obligation to use reasonable care in preventing the pollution of its reservoir; and it cannot be that the respondent made itself liable in damages for the specific reason that it called the attention of the proper authority to the fact that the applicant was violating a statute.
The larger issue which the applicant has attempted to introduce into the case, is whether the private uses of the watershed of a public water supply may be limited by the increasing demands of prophylactic sanitation without compensation to the private owners. But that issue is not presented by these pleadings otherwise than by the claim that the respondent has limited the *Page 465 uses of the applicant's land by the specific means alleged in paragraphs six and seven; nor was the respondent called upon to meet that issue otherwise than by denying the specific allegations of fact contained in those paragraphs.
The finding shows that on the trial the applicant stepped outside of the pleadings and made the broad claim of law that the respondent was bound by its charter to acquire by purchase or condemnation sufficient watershed surrounding its reservoir to protect the water from pollution; and his fourth assignment of error is that the trial judge erred in overruling that claim. There is, however, no reason to suppose that the trial judge did overrule that claim. On the contrary, his statement of conclusions reached indicates that he very property confined himself to the determination of the issues raised by the pleadings.
The assignments of error relating to the exclusion of evidence may be briefly disposed of. The applicant was called as a witness and questioned as to his recollection of the scope of the hearing before the assessors in the condemnation proceeding of 1904. On objection the evidence was excluded.
That ruling was correct, because the report of the committee already quoted is certain and unambiguous; damages were then awarded for flooding of land then overflowed, and for the taking of the 3.28 acres, and nothing else.
There is no error.
In this opinion the other judges concurred.