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owner, the plaintiff's grantor, who was entitled to recover not only the existing but all prospective damages to the land; that no action will lie in the name of the present plaintiff; and that the right of action is barred by the statute of limitations.
No doubt the former owner of the land might have sued at once for the invasion of his right by the discharge of the several natural streams of water upon his land in the manner stated, even though the damage was merely nominal; otherwise a right by prescription might be gained: Jackman v. Arlington Mills, 137 Mass. 277, 283; Hooten v. Barnard, 137 Mass. 36. But no such action was brought; and the question is, whether such an action must be brought within six years from the defendant's original wrongful act, or whether the injury is to be treated as a continuing one, for which the defendant may be held responsible after the expiration of six years.
If the defendant's act was wrongful at the outset, as the jury have found, we see no way in which the continuance of its structure in its wrongful form could become rightful as against the plaintiff, unless by release or grant, by prescription, or by the payment of damages. If originally wrongful, it has not become rightful merely by being built in an enduring manner. That which was a nuisance at first does not lose its character as such by being continued for six years, whatever effect the lapse of time might have upon equitable remedies for its removal; and the maintenance of a structure which will continue to cause a wrongful diversion of water upon the plaintiff's land, in quantities varying with the seasons, is a continuing nuisance, and an invasion of the plaintiff's right from day to day, and he may select his own time for bringing an action therefor, and he is not barred by the lapse of six years from the erection of the structure. The case falls within the ordinary rule applicable to continuing nuisances and continuing trespasses: Prentiss v. Wood, 132 Mass. 486; New Salem v. Eagle Mill Co., 138 Mass. 8; Uline v. New York Central and Hudson River R. R. Co., 101 N. Y. 98, 109; 53 Am. Rep. 123 et seq.; Reed v. State, 108 N. Y. 407, 414; Delaware and Raritan Canal Co. v. Wright, 21 N. J. L. 469; Bare v. Hoffman, 79 Pa. St. 71; Holmes v. Wilson, 10 Ad. & E. 503; Battishill v. Reed, 18 Com. B. 696; Whitehouse v. Fellowes, 10 Com. B., N. S., 765; Devery v. Grand Canal, I. R. 9 C. L. 194.
In Fowle v. New Haven and Northern Co., 107 Mass. 352, 112 Mass. 334, a case in some respects resembling this, the plaintiff had brought a former action, in which he expressly declared for prospective damages, and he was allowed by the court to recover them, apparently without any objection on this ground from the defendant; and if he had been allowed to hold his second verdict, he would have got double damages, which clearly was not permissible. The decision of that case does not necessarily imply that an action must have been brought within six years, or if it does, we cannot follow it; and we have no occasion to consider whether ordinarily prospective damages would be recoverable in such a case or not. No question of the measure of damages is before us.
NUISANCE, CONTINUING LIABILITY FOR. — Seo noto to Allen v. De Groodle 14 Am. St. Rep. 630, for liability for nuisances of a permanent character. Every continuance of a nuisance, or recurrence of the injury, is an addi. tional nuisance, forming in itself the subject matter of a new action: Slog:iy v. Dilworth, 38 Minn. 179; 8 Am. St. Rep. 657; Ellis v. American Acad. of Music, 120 Pa. St. 608; 6 Am. St. Rep. 739, and note. Compare note to Chicago etc. R. R. Co. v. Lorb, 59 Am. Rep. 351-369.
NUISANCES LAPSE OF TIME, - Lapse of time will not legalize a publio nuisance: Note to Fort Smith v. McKibben, 48 Am. Rep. 24–38; for no dui. sance is legalized by length of time: Dygert v. Schenck, 23 Wend. 445; 35 Am. Dec. 575, and note. In an action against a railroad company for obstructing water and overflowing land, the right of action does not accrue necessarily at the time the obstruction was first bailt, and the plea of the statute of limitations is properly withheld from the jury, when it appears that at that time the damages could not have been foreseen and estimated: Sullens v. Chicago etc. Rüy Co., 74 Iowa, 659; 7 Am. St. Rep. 501. See also Ogburn v. Connor, 46 Cal. 346; 13 Am. Rep. 213; Ohio eta Ry Co. v. Wachter, 123 Ill. 440; 5 Am. St. Rep. 532, and note 537-540. But in Emery v. Raleigh etc. R. R. Co., 102 N. C. 209, 11 Am. St. Rep. 727, it was decided that the right by prescription to maintain a culvert, so constructed as to cause plaintiff's land to be overflowed, may be acquired by a railroad company by user for twenty years.
PEARSON V. ALLEN.
(151 MASSACHUSETTS, 79.) STREETS DEDICATED BY MAPS. Laying out a large traot of land, and cutting
it up into house lots and ways, does not give every parchaser of a lot a right of way over every street. He has no right to insist upon the keeping open of a street which does not connect his lands with the public highway, and which is desirable because it is nearest the water and
in full view thereof. DEDICATION BY MAPs. — Including a space upon a map with dotted lines is
not a sufficient indication that it is to be kept open for the benefit of the public or of a purchaser of lands in the tract represented on the map
PUBLIC EASEMENTS, ACTION BY PRIVATE PERSON FOR OBSTRUCTION 01.
Though lands are dedicated to public use as streets and ways, their ob. struction as such will not give a cause of action to a private person, unless he suffers private damages. Bill in equity to prevent the obstruction of plaintiff's use of certain ways.
Lands at Nantucket Bluff were laid out on & plan which was recorded, and according to which lots were Bold. The plan, so far as material to this cause, was as fol. lows:
North Street, which is not shown on this plan, was situato about two hundred feet westerly from the part represented on the plan. Plaintiff owned lots 27, 28, and 44, and the defendant lots 4, 5, 9, and 10.
J. Brown, for the plaintiff.
HOLMES, J. The plaintiff and the defendant are both owners of building lots sold with reference to the same plan, which displays a large tract cut up into house lots and ways. The only public way near the tract is North Street, which is shown on the west side of the plan. The plan shows ways leading directly to this street from the plaintiff's lots. Her lots also are drawn as abutting upon a way called Grant Avenue, from which there is delineated, extending in an opposite direction from North Street, a way called Centre Avenue, which begins directly opposite two of the plaintiff's lots, at a distance of 65 feet, on the other side of Grant Avenue, and leads 181 feet to another way, laid down as Cliff Avenue. Neither Centre Avenue nor Cliff Avenue leads to any public street, but from Cliff Avenue there is an agreeable view of the sea, without, however, any access to it. The defendant owns all the land on the north of Centre Avenue, and has inclosed about one quarter of the avenue in width, throughout its whole length. He also has inclosed a triangle at the corner or Ceritre and Cliff avenues, which, on the plan, appears bounded by dotted lines. The two sides of the triangle on the streets continue the side lines of the streets in the same directions until they meet at the corner, but the rest of the street lines are unbroken. The plaintiff seeks an injunction against such inclosures or obstructions.
The only question worthy of discussion is, whether the private rights of way, if any, to which the plaintiff is entitled by reason of the reference to the plan in her deeds, extend to Centre Avenue. We are of opinion, on the whole, that they do not. The cases here and elsewhere show that there are limits to the easements raised in this way by implication, even if there are not limits to the power of creating easements when it is attempted by express words. A reference to a plan like this, laying out a large tract, does not give every purchaser of a lot a right of way over every street laid down upon it. In Regan y. Boston Gas Light Co., 137 Mass. 37, a case somewhat like the present, it was held that the defendant could close a whole series of streets shown on the plan, leaving open the private ways adjoining the plaintiff's lots to the highway in one direction, and to the next side-street in the other. No doubt a grantee sometimes may be entitled to have ways kept open which his land does not touch, if they are necessary or convenient in order to reach a highway: Fox v. Union Sugar Refinery, 109 Mass. 292; and he may have like rights in a way which his land does touch on the side not leading to the highway: Rodgers v. Parker, 9 Gray, 445. But Centre Avenue does not lead to a highway, and the plaintiff's land does not touch it. We do not mean that these circumstances would be conclusive in all cases. If Cliff Avenue were on the border of the ocean, there would be strong reason for saying that in a plan for a seaside resort access to the ocean was very nearly as important as access to the public streets: See Higginson v. Nahant, 11 Allen, 530, 535. But the plaintiff does not make out that case. The most that she alleges is, “that the land on Cliff Avenue is nearest the water, and in full view thereof,” and that the right to use that avenue and the triangle in cornro.
tion with her cottages is of substantial pecuniary value. With some hesitation, we feel bound to decide that the value of a right of access for purposes of prospect is not a sufficient reason to extend her right of way over Centre Avenue.
It follows, a fortiori, that the plaintiff has no easement to have the triangle kept open. Moreover, the dotted lines on the plan are not a sufficient indication that it was to be kept open. They divide it from the adjacent ways, and the fact that they are not unbroken, as elsewhere on the plan, at most only raises a doubt as to the intentions of the owner: See Attorney-General v. Whitney, 137 Mass. 450. Whether there are other objections still, we need not consider.
It was argued for the plaintiff that the ways and the triangle were dedicated to the public by the making and recording of the plan, and the sale of lots with reference to it. The suggestion is answered, so far as the triangle is concerned, by what we have said already; and as to the ways, at least, those acts were not sufficient to dedicate them in this commonwealth: Pub. Stats., c. 49, sec. 94; Bowers v. Suffolk Mfg. Co., 4 Cush. 332; Morse v. Stocker, 1 Allen, 150; Hayden v. Stone, 112 Mass. 346; Abbott v. Cottage City, 143 Mass. 521, 524; 58 Am. Rep. 143. Furthermore, a dedication to the public alone would confer no private easement on the plaintiff. She would have no private right of action for the public nuisance, unless she suffered private damage, which it is at least doubtful whether the loss caused by these obstructions would be, under our decisions: Hartshorn v. South Reading, 3 Allen, 501; Willard v. Cambridge, 3 Allen, 574; Smith v. Boston, 7 Cush.254, 255; Brainard v. Connecticut River R. R. Co., 7 Cush. 506, 510; Geer v. Fleming, 110 Mass. 39; Brayton v. Fall River, 113 Mass. 218; 18 Am. Rep. 470; Thayer v. New Bedford R. R. Co., 125 Mass. 253, 257; Breed v. Lynn, 126 Mass. 367, 370.
PUBLIC NUISANCES RIGHT OF ACTION BY PRIVATE PERSON, — Publio puisances can be abated by a private person only when they obstruct his private right, or interfere at the time with his enjoyment of a right common to many, as the right of passage on a public highway, and he thereby sustains a special injury: Lawlon v. Steele, 119 N. Y. 226; 16 Am. St. Rep. 813; note to Jackson v. Kiel, 16 Am. St. Rep. 209.
STREETS — MAPg. — One who purchases a lot bounded by streets marked opon a map or plat is entitled to a right of way over such streets: Moose v. Carson, 104 N. C. 431; 17 Am. St. Rep. 681. The mere marking of a street apon an unrecorded map does not necessarily constitnte a dedication of the street: People v. Reed, 81 Cal. 70; 15 Am. St. Rep. 22