Cotton v. Pocasset Manufacturing Co.

Wilde, J.

The defendants move for a new trial on several *433grounds. In the first place, it is contended that the instructions to the jury were erroneous, as to the plaintiff’s right to drain the water from his cellar into the town drain. The instructions were, that if the town drain had existed essentially in the same place and state, for a period of twenty years before this action was commenced, the town had gained a right to have their drain empty itself upon the defendants’ land, and that the plaintiff would have the right to enter the drain from his cellar into the town drain, and to have the water run through it, upon the land of the defendants, although the plaintiff’s drain had not existed for twenty years.

These instructions, we think, were incorrect, and were material to the issue to be tried. It is a well settled rule of law, that if a person has a right of way over the land of another, to a particular close, he cannot enlarge it and extend it to other closes. It was so decided in Davenport v. Lamson, 21 Pick. 72. The same principle manifestly applies to the present case. If the plaintiff has acquired the right in question, it must be in the right of the town; and the town clearly have acquired no • such right. For it is plain, from the evidence, .that a material alteration has been recently made in the plaintiff’s drain, without which his cellar would not have been flowed. Nothing short of an acquiescence of the defendants, for twenty years, in such an alteration, would authorize the presumption of a grant, either in favor of the town or the plaintiff. We are therefore of opinion that, on this ground, the defendants are entitled to a new trial.

We are also of opinion that the verdict is against the evidence in respect to the town drain. It appears from the evidence, that within twenty years before the plaintiff’s action was commenced, a new drain was opened by the town, which was made larger and deeper than the former drain, and partly in a different place. On this point, the jury were instructed “ that in order to find for the plaintiff, they must be satisfied that there had been one and the same drain across Main Street, uninterruptedly, for a period of twenty years, before the action *434was brought, and that the plaintiff’s drain was connected with that drain.” This instruction was unquestionably correct ; and in conformity to it, the evidence does not support the verdict.

Another ground of defence is relied on by the defendants, which we are strongly inclined to think would be decisive in their favor, if the other grounds should fail.

It is contended that the plaintiff’s remedy, if he has been injured, is under the mill act, (Rev. Sts. c. 116,) the first section of which authorizes the erection of a water mill, and a dam to raise the water for working it; and the fourth section of which provides, that any person, whose laud is overflowed, or otherwise injured by such dam, may obtain compensation therefor, in the manner provided in that act. This case, if the plaintiff is entitled to any remedy, comes certainly within the words of the statute; and we perceive no reason to doubt that it is within its true meaning. We are, however, of opinion that, upon the evidence reported, the plaintiff is not entitled to an action in any form.

New trial granted.