Mill Act — Damages — Evidence. It is a proper mode of estimating damages, on a complaint under the mill act, Pub. Sts. c. 190, to ascertain how much less the entire tract was worth by reason of the flowing or taking of a part.
MORTON, J.
This is a complaint under the mill act for damages caused to land of the plaintiff by flowing and percolating water raised by the defendant's dam. The land damaged by the percolation and flowage consisted of from three to five acres, and was part of a tract of land lying between a highway on the south and the river, where the dam was, on the north, and comprising about fifteen acres.
The plaintiff was allowed, against the objection of the defendant, to introduce testimony showing how much the entire tract of fifteen acres was damaged by the taking away of the part that was injured by percolation and flowage, and how much less the entire tract was worth by the taking away of the part of which the plaintiff was thus deprived. The only exception is to the admission of this testimony. We think that the evidence was admissible. Palmer Co. v. Ferrill, 17 Pick. 58, 63; Maynard v. Northampton, 157 Mass. 218; Fales v. Easthampton, 162 Mass. 422.
If the land taken or flowed constitutes a part of a larger tract, the effect of the taking or flowing upon the rest of the tract is a proper element of damage. Indeed, it would seem that the most correct method of estimating the damages in such a case would be to ascertain how much less the entire tract was worth by reason of the taking or flowing of a part. The owner of the dam has no just ground of complaint against such a rule, because he is not obliged to build his dam, and by building or raising his dam he must be deemed to take or flow the land in the situation and relation to other lands in which it is at the time when he builds or raises his dam. To limit the damages to the market value of the land actually taken or flowed would or might operate unjustly towards the landowner.
Exceptions overruled.