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original wrong of the defendant as a result to be reasonably apprehended from such a cause. The law cannot enter the realm of pure sentiment in this class of case, and award pecuniary compensation for those injured feelings which spring from sympathy and the severance of ties of love and affection. It follows that there can be no recovery for the mental suffering which ensues from the contemplation of the pain, deformity, imperfections or characteristics of any other person or thing: See McDermott v. Severe, 202 U. S. 600, 26 Sup. Ct. Rep. 709, 50 L. ed. 1162.
The extent to which recovery may be had for mental suffering has been the subject of somewhat conflicting decisions in various jurisdictions. But so far as we have been able to discover, there is unanimity of decision that, for mental suffering of a class like that under discussion (except by express provision of statute, see Kelley v. Ohio River R. R. Co., 58 W. Va. 216, 52 S. E. 520, 2 L. R. A., N. S., 298), there can be no recovery: Maynard v. Oregon R. R. Co., 46 Or. 15, 78 Pac. 983; Bovee v. Danville, 53 Vt. 183; Western Union Tel. Co. v. Cooper, 71 Tex. 507, 10 Am. St. Rep. 772, 9 S. W. 598, 1 L. R. A. 728; Texas Mexican Ry. Co. v. Douglass, 69 Tex. 694, 7 S. W. 77; Atchison etc. R. R. v. Chance, 57 Kan. 40, 45 Pac. 60; Butler v. Manhattan Ry., 143 N. Y. 417, 42 Am. St. Rep. 738, 38 N. E. 454, 26 L. R. A. 46; Lennox v. Interurban St. Ry., 104 App. Div. 110, 93 N. Y. Supp. 230.
For Authorities bearing upon the principal case, see Prescott v. Robinson, 74 N. H. 460, 124 Am. St. Rep. 987, and cases cited in the crossreference note thereto.
STIMSON V. BROOKLINE.
[197 Mass. 568, 83 N. E. 893.] WATERCOURSE, Artificial, When Should be Treated as Natural.--A watercourse made by the hand of man may have been created under such conditions that, so far as the rules of law and the rights of individuals are concerned, it is to be treated as if it were of natural origin. (p. 386.)
WATERCOURSE, Artificial, Effect of Acquiescence in.-If a ditch constructed for the purpose and having the effect of draining a watercourse from or through land is permitted to remain for more than twenty years, with the acquiescence of the public authorities and of all persons interested, the same rules should be applied to it as to a natural watercourse. (p. 386.)
WATERCOURSE-Question of Fact. — When, from the evi. dence, it appears that a ditch was constructed many years ago for the drainage of meadows, it is a question of fact for the jury whether it was in any sense a watercourse of any kind or anything more than a ditch for drawing off water and draining the land through which it passed. (p. 387.)
WATERCOURSE, Artificial, Liability for Obstructing.-If a ditch or artificial watercourse is constructed under such circumstances that it should be treated as a natural watercourse, one who dams it up is answerable to a riparian proprietor for damages resulting to him therefrom. (p. 387.)
NUISANCE-Obstruction of a Ditch or Watercourse.If a ditch which land owners have acquired the right to have treated as a natural watercourse is dammed up to the injury of one of the riparian proprietors, he may maintain an action, although similar damages may have been sustained by others of the riparian proprietors. (p. 387.)
RIPARIAN PROPRIETOR, Right of One to Recover for Injury Also Suffered by Others.—Every riparian proprietor may maintain an action of tort for damages to the property, though such damage is precisely like that suffered by every other riparian owner. (p. 387.)
DAMAGE, Action for, When Only Nominal can be Shown.A land owner may maintain an action, without showing present actual damage to his land, if he proves that an injurious effect is produced upon the property by the act complained of, such as to diminish its value, if, by the lapse of time, the defendant might acquire the right to continue the act. (p. 388.)
Tort to recover for damages claimed by the plaintiff to have been sustained to his land situate on the bank of the Charles river, through the draining by the defendant of a ditch. Verdict and judgment for the defendant. The plaintiff alleged exceptions.
H. Livermore, for the plaintiff.
569 KNOWLTON, C. J. The evidence in this case tends to show that, at a place in Dedham, called the Broad MeadOws, there is a channel or depression along the surface of the ground, which is known as Long Ditch, in which there is more or less water. This ditch connects with the Charles river at each end. The river takes a very circuitous course, such that the distance between the ends of the ditch, measured by the curve and windings of the river, is six or eight miles, while the length of the ditch through the meadows is only about three-quarters of a mile. The plaintiff is a riparian proprietor on the river, about two miles down the stream from the upper end of the ditch. The defendant owns land through which the ditch runs in the upper part of its course, and it has built a dam there which the plaintiff contends sets back water so as to increase the flow in the river below, to the damage of his real estate. It was undisputed that the ditch is ancient, and there was evidence tending to show that it was “cut across the Broad Meadows from river to river” in 1652 or 1653. There was evidence on the part of the plaintiff that at times it has a large flow, and he contended that it was a watercourse which, so long as it was unobstructed, carried a substantial part of the water of the Charles river. The defendant introduced evidence tending to show that it had become more or less obstructed by the growth of vegetation, trees and bushes, and by the construction of a road across the lower end of it, and by other natural or artificial causes, and that for more than twenty years it had ceased to be a natural watercourse, if it ever had been one, which the defendant denied. The defendant also contended, and introduced evidence tending to show, that the erection of the dam had no effect upon the amount of water which could pass through the ditch, because it was lower than the road above mentioned, and because of the other obstructions, and that it had no effect upon the height of the water on the plaintiff's land.
A fundamental question was whether Long Ditch was a watercourse, the water in which all persons who might be affected by 570 it were entitled to have flow without obstruction, as if it were a natural watercourse, or whether it was a mere drain, dug to carry off surface water and water percolating through the ground.
The evidence tended to show that, while very ancient, it was of artificial construction. A record of a town meeting of the town of Dedham, held in the year 1652, refers to it as a watercourse to be cut through the Broad Meadow, and indicates that, in a part or all of its course, it ran through common land. The jury might infer from the evidence that it was cut through at about that time from the river at its upper terminus to the river at its lower terminus, that water flowed through it, and that there has been water in it a part or all of the time in every year since. On the other hand, they might find that years ago it ceased to be a watercourse, if it was one formerly.
The plaintiff made numerous requests for ruling relating to the law applicable to watercourses, one of which was that, “on the evidence the jury should find that Long Ditch is an ancient watercourse.” Another was: “The law is the same if the ditch was dug in 1652, or more than fifty years before the suit, as if it were originally a natural watercourse."
Most, if not all, of these could not be given in the form requested, some of them because they assumed the existence of facts which were for the jury to find, and some because, while generally correct, they involved some alternative element of law which was not accurately stated. But they plainly directed the attention of the judge to the proposition that the mere fact that a watercourse was artificially dug would not necessarily prevent the existence of rights in it, after a long time, like those pertaining to a natural watercourse. Exception was taken to the instructions given, so far as they were not in accordance with the plaintiff's requests.
The judge submitted to the jury the question whether this was a natural watercourse or an artificial watercourse, and said to them: “If you find that it was not a natural watercourse, then your verdict should be for the defendant." There are portions of the charge which leave us in doubt as to the precise distinction that he intended to make between a natural watercourse and an artificial watercourse. From some of his illustrations one might infer that he meant by an artificial watercourse a drain to carry off surface water, and that he intended to include among natural watercourses watercourses artificially constructed, which were so maintained and used for many years that they ought to be treated by the courts as if they were natural watercourses. But he did not say this, nor anything like it. He said of a ditch dug for drainage, “that is not a natural watercourse; that is something made by man.” In another part of the charge he said: “A course that is established by the hand of man by digging a ditch is not to be considered a natural watercourse.
We think the jury understood him to mean that, if this was a flow of water, however large or continuous, which had its origin long ago in the artificial opening of a ditch to receive a part of the flow of the Charles River, especially in times of high water, it was not a natural watercourse, but was an artificial watercourse, and the plaintiff could not recover. If he meant that the term “natural watercourse” does not include any watercourse which was originally created by the directing hand of man, to determine the flow of water by works of construction, his instruction that unless this was a natural watercourse the plaintiff could not recover was erroneous.
In Freeman v. Weeks, 45 Mich. 335, 7 N. W. 905, Judge Cooley said: “If by common consent the ditch was dug as a neighborhood drain, and has remained open as a watercourse
Am. St. Rep., Vol. 125-25
for a series of years, it ought to be governed by the same rules that apply to other watercourses. It has often been decided both in England and America that watercourses made by the hand of man may have been created under such conditions that, so far as the rules of law and the rights of the public or of individuals are concerned, they are to be treated as if they were of natural origin. Baron Channell said of one of them, in Nuttall v. Bracewell, L. R. 2 Ex. 1: “It is a natural stream or flow of water, though flowing in an artificial channel.” Other cases recognizing the doctrine are the following: Magor v. Chadwick, 11 Ad. & E. 571; Holker v. Poritt, L. R. 8 Ex. 107; Sutclife v. Booth, 32 L. J. Q. B. 136; Reading v. Althouse, 93 Pa. 400; Weatherby v. Meiklejohn, 56 Wis. 73, 13 N. W. 697. The principle is analogous to that under which other rights are acquired in real property by prescription or adverse use. If the public authorities,
representing the sovereign power, by a formal legislative act in 1652, took a part of the water of the Charles river and conducted it three-quarters of a mile through a new channel, and thereby made a new watercourse, satisfying by compensation or otherwise all private rights of property affected by the change, if there were any, there would be good ground for contending that thereby a watercourse was established, which should be treated at once by the courts like a natural watercourse. Certainly after a long lapse of time, and even after no more than twenty years, if this watercourse continued without change, with the acquiescence of the public authorities and of everybody interested, there is every reason, both upon principle and authority, for applying the same rules of law to it as to a natural watercourse. In the early years of the colony the towns, for many purposes, were representatives of the sovereign power as to the management and disposition of common lands and public rights in land within their boundaries: Attorney General v. Herrick, 190 Mass. 307, 76 N. E. 1045, and cases cited. It is conceivable that the mere construction of a watercourse and dedication of property to that use by all the persons whose rights of property might be affected by the change, with acceptance by the public, if public interests were involved, might give these persons the same rights in it that they would have if it were a natural watercourse. It is unnecessary to determine for every conceivable case under what conditions such rights might be created. We think, in the present case, that if the flow of water through Long Ditch for many years was such as would constitute it a natural watercourse carrying a part