
    Sally L. Newhall vs. Benjamin Ireson, Jr., & another.
    A deed, describing the boundary line of the land conveyed as running northerly a certain distance to a highway, and from thence upon the highway, passes the land to the centre of the highway, although the distance specified, by actual measurement, carries the line only to the southerly side of the highway.
    A diversion of a large portion of the water of a natural watercourse, by a proprietor of land through which the watercourse runs, renders him liable to an action on (he case by a proprietor of land below, from which the water is thus diverted, although the latter thereby sustains no present actual damage.
    A statute, authorizing a proprietor of land, through which a natural watercourse runs, to lay a pipe or culvert, from such watercourse, across a highway, to his mUl, does not protect him from an action by a proprietor below, from whose land the water is thus diverted,
    This was an action on the case to recover damages for a diversion of a part of the waters of a natural watercourse; and was submitted to the court upon the following statement of facts: —
    The land of the plaintiff is situated on the south side of a highway in the city of Lynn, called Boston old road. The watercourse crosses the highway running from the north of it opposite the plaintiff’s land, and runs on the south side thereof, between the wall of such land and the travelled part of the highway, several rods, and then, turning to the south, runs between the plaintiff’s land on the east and the defendants’ land on the west into a creek below. The northern boundary of the plaintiff’s land is described in a deed from Joseph Ballard to Thomas Newhall, the plaintiff’s father, under whom she claims title, as “running northerly seven poles to the county road, and from thence upon the road twenty-two poles to the first mentioned bound.” The seven rods terminate on the north at the old wall which formerly constituted the southern boundary of the road, and the watercourse is wholly north of the old wall and within the southern half of said highway; and one question submitted to the court is, whether such boundary can be construed to extend to the middle of the highway.
    The defendants own a piece of land next west of the plaintiff’s land, upon which they have erected a mill or factory, and also another piece of land on the north side of the highway above the plaintiff’s land and wholly easterly of the place where the watercourse crosses the highway, which last piece of land the defendants have excavated and formed into a pond for the use of their mill. The watercourse runs through this last mentioned piece of land and pond and a dam has there been built across it by the defendants.
    The defendants, under the authority of an act of the legislature passed on the 3d of May, 1850, (St. 1850, c. 285,) put down a pipe or culvert, leading from their pond along and across the highway, to their mill, agreeably to the conditions and requirements of the act, so far as the size of the pipe and the manner of placing it in the ground are concerned. The defendants have since occasionally drawn water through the pipe, but at no time in such quantity as to prevent the plaintiff from using it in any manner in which she has ever been accustomed to use it.
    Nominal damages only are claimed by the plaintiff.
    
      T. B. Newhall, for the plaintiff.
    1. By the common law, no person has a right to divert the waters of a natural watercourse, for any purpose other than domestic. or the purposes of husbandry; and then the surplus must be returned to the channel, before it enters the land of the proprietor below. 3 Kent Com. (6th ed.) 438, 439; Angell on Watercourses, (4th ed.) §§ 100, 135, 388; Vandenbergh v. Van Bergen, 13 Johns. 212; Comm’rs of Canal Fund v. Kempshall, 26 Wend. 404; Tyler v. Wilkinson, 4 Mason, 397; Webb v. Portland Manuf. Co. 3 Sumner, 189; M’Calmont v. Whitaker, 3 Rawle, 84; Buddington v. Bradley, 10 Conn. 213; Blanchard v. Baker, 8 Greenl. 253; Bealey v. Shaw, 6 East, 208.
    2. Although no actual injury may have been sustained by the plaintiff, yet if the diversion complained of was wrongful, she is entitled to nominal damages. Angell on Watercourses, § 135; Butman v. Hussey, 3 Fairf. 407; Blanchard v. Baker, 8 Greenl. 253; Webb v. Portland Manuf. Co. 3 Sumner, 189; Plumleigh v. Dawson, 1 Gilman, 544; Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241.
    3. The special act of the legislature, under which the defendants claim, does not authorize them to divert the waters of the watercourse in question; or if it does, it is unconstitutional, because it does not provide a compensation for the damage which may be caused by the diversion to persons having rights in the watercourse. Perry v. Wilson, 7 Mass. 393; Holden v. James, 11 Mass. 396; Thacher v. Dartmouth Bridge, 18 Pick. 501.
    
      J. C. Stickney, for the defendants.
    1. The plaintiff is not the owner of the brook referred to in the agreed statement of facts. Nor has she any right to monopolize or control the waters of the brook. The boundaries of the plaintiff’s land are such as to negative the entire ownership of the brook, and exclude the road under which the defendants’ culvert is laid. Tyler v. Hammond, 11 Pick. 193. 2. If the plaintiff is owner or part owner of the brook, she has suffered no actual or perceptible damage. It is damnum absque injurié, theoretical damage merely. Thompson v. Crocker, 9 Pick. 59; Rogers v. Bruce, 17 Pick. 184; Cook v. Hull, 3 Pick. 269; Weston v. Alden, 8 Mass. 136; Colburn v. Richards, 13 Mass. 420; Mason v. Hill, 5 B. & Ad. 1, and 2 Nev. & Man. 747; Bealey v. Shaw, 6 East, 214. 3. The defendants are authorized by St. 1850, c. 285, to do whatever they have done. Boston & Roxbury Milldam Corp. v. Newman, 12 Pick. 467.
    The opinion was delivered at the November term, 1852.
   Shaw, C. J.

Two questions are presented in this case. The first is whether the plaintiff has title to the half of the highway, along which the stream in controversy runs; if she has, it being conceded that the brook lies wholly south of the middle of the highway at that place, it must of course for some extent pass wholly through the land of the plaintiff.

The northern boundary of the plaintiff’s land is described in-a deed, from which she derives her title, as “ running northerly seven poles to the county road, and from thence upon the road twenty-two poles to the first mentioned bound.” The ordinary construction of such a deed, to the highway and from thence upon the highway, would carry the land to the middle of the highway. Such is the established presumption, governing the construction of a deed, in the absence of controlling words. Chatham, v. Brainerd, 11 Conn. 60; Champlin v. Pendleton, 13 Conn. 23; Bucknam v. Bucknam, 3 Fairf. 463; 1 U. S. Dig. Boundaries, III.

The only circumstance relied on, to control this presumption, is the fact found in the case, that in measuring the distance from the last named boundary, in the description, to the road, it is in fact seven rods to the southerly side of the road, there indicated by a stone wall, between which and the ■travelled part of the road the brook runs for a little distance, and then turns in a southerly direction, enters the plaintiff’s land, and runs through it to its outlet in a salt water creek. But the court are of opinion, that this fact does not rebut the strong presumption, that boundary on a highway is ad filum vice. The road is a monument, the thread of the road, in legal contemplation, is that monument or abuttal. By a well known rule of construction of deeds and other instruments, calling for localities, measurements will yield to monuments. Suppose this had been northerly to the centre of. the highway, there measuring seven rods, and it in fact measured nine rods, no doubt this would have passed the soil to the centre of the road. Land may no doubt be bounded by the side of a highway, but it must be done in clear and distinct terms, to control the ordinary presumption. Perhaps this point is not very- material to the present case, because it is conceded, that from the highway it runs exclusively through the plaintiff’s land; but as it is made, and as perhaps it. makes the result more clear and satisfactory, we have examined it with the above result.

2. Taking this to be so, the defendants, by excavating an artificial pond or reservoir, on their own land, on the north side of the road, and placing a dam across the brook to raise the water in that reservoir, and thence by a culvert or pipe taking the water from the reservoir, along and across the road and into their own land, and conducting it thence to their mills, from which it is discharged into the salt water below the plaintiff’s land, have effectually diverted a large, portion of the entire volume of the water of the brook from the plaintiff’s land.

This was an unwarrantable and injurious use of a common right to a watercourse, running in its natural channel, through the lands of several different proprietors. The rule of law is well settled, that each of such proprietors has a right to a reasonable and beneficial use of the current as it passes through his own land; but he has no right to divert or corrupt it, so as to prevent the proprietor below him from having and enjoying the same use, for all usual and beneficial purposes. This substantial diversion of the watercourse, therefore, was unwarranted by any right of the defendants, as proprietors above, was an encroachment on the rights of the plaintiff, and prejudicial to her estate. And although the plaintiff has sustained no present damage, because she has had no miff upon it, or otherwise used it for any agricultural or manufacturing purpose, yet such diversion would prevent such beneficial use of it hereafter, and thus impair the value of the estate. It is therefore a case where an action can be maintained to vindicate the plaintiff’s right, and to prevent a loss of it by adverse possession and lapse of time.

Even where it has been considered that a riparian proprietor had authority to make use of the stream for purposes of irrigation, and thus by that use divert a portion of it, it has been held under the condition, that such diversion was, under all circumstances, a reasonable use of the stream, and that the surplus of the water thus used must be returned into its natural channel. These cases carry a strong implication, that a diversion of the entire stream, or of a considerable part of it, is prejudicial to the proprietor below, and not justifiable. Weston v. Alden, 8 Mass. 136; Colburn v. Richards, 13 Mass. 420; Cook v. Hull, 3 Pick. 269; Embrey v. Owen, 6 Welsb Hurlst. & Gord. 353.

3. We have not considered the act of the legislature as having any effect on the rights of the plaintiff. It seems to have been made alio intuitu, and solely as a license to the defendants to make a certain use of the highway, which would otherwise have been a public nuisance.

Judgment for the plaintiff for $1 and costs.  