Vandusen v. Comstock
Massachusetts Supreme Judicial Court
The plaintiff in error made his application to the Court of Common Pleas for this county, pursuant to the statutes of this commonwealth, for the support and regulation of mills, setting forth that he was seised and possessed of a certain tract of land in Great Barrington, through which a stream of water passes, that Comstock, owning and occupying a saw-mill on the said stream, had erected a dam across said stream, for the working of said mill, whereby ten acres of good and…
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The plaintiff in error made his application to the Court of Common Pleas for this county, pursuant to the statutes of this commonwealth, for the support and regulation of mills, setting forth that he was seised and possessed of a certain tract of land in Great Barrington, through which a stream of water passes, that Comstock, owning and occupying a saw-mill on the said stream, had erected a dam across said stream, for the working of said mill, whereby ten acres of good and valuable land, parcel of the said tract, had been and still was overflowed and spoiled. Whereupon he prayed that a…
1Opinion of the Court
Curia.
The verdict in this case is in direct contradiction to the record, which says expressly that the respondent appeared, but did *161not show sufficient cause. If he claimed to be exempted from the payment of any damages at all, he should have pleaded to issue, and the issue would have been tried at the bar of the court. Having neglected so to do, the sheriff’s jury were bound to give the complainant some damages. This verdict cannot be supported (2).
Proceedings quashed.
[As to the question how far the act of 1795, c. 74, is consistent with the constitution, see note to Stowell vs. Flagg, 10…
2Cases cited1 opinion
- Weld v. GorhamMassachusetts Supreme Judicial Court · 1813