## Facts

- Stratton owned a mill on a stream and relied on the natural flow to generate waterpower.
- Mt. Hermon Boys’ School owned upstream riparian land on the same stream and also owned a separate, noncontiguous school estate about a mile away in a different watershed.
- Mt. Hermon installed pumping equipment on its riparian land and diverted about 60,000 gallons per day from a spring and the stream to the separate school estate.
- The diverted water supplied extensive school and farm uses (including buildings, livestock operations, and facilities such as a laundry and power plant).
- Evidence supported that the diversion substantially reduced the volume of water reaching Stratton’s mill and diminished the power available at his waterwheel.
- The trial court refused Mt. Hermon’s requested instruction that diversion to non-riparian land was not conclusive of liability and that the jury should decide only whether the quantity taken was unreasonable under the circumstances.
- The trial court instructed that Mt. Hermon’s right was limited to reasonable use for the benefit of land adjoining the watercourse and did not extend to use on other premises; it further instructed that such off-tract use entitled Stratton to at least nominal damages even without actual loss.
- The jury found for Stratton; Mt. Hermon appealed on exceptions to the refusal and to the instructions given.

## Issues

1. Under Massachusetts riparian law, when an upper riparian proprietor diverts water to a noncontiguous, non-riparian estate (including outside the watershed), is the lower riparian proprietor entitled to recover without proof of actual injury?
2. Did the trial court err by instructing that off-tract diversion automatically entitled the plaintiff to nominal damages even if no actual loss was shown?
3. If the instruction was erroneous, was the error harmless given the evidence of substantial diminution in flow and loss of mill power?

## Decision

- The Supreme Judicial Court held that a riparian proprietor may make any reasonable use of stream water in connection with the riparian estate and for lawful purposes within the watershed, so long as the stream is not diminished beyond what is reasonable in light of lower owners’ like rights.
- When water is diverted out of the watershed or to a disconnected estate, the lower owner may recover only upon proof of actual injury to the lower estate affecting present or future reasonable use.
- The trial court’s instruction permitting recovery of nominal damages for off-tract diversion without proof of injury misstated the law.
- The erroneous instruction was harmless because the evidence supported substantial actual damages from the diversion.
- The defendant’s exceptions were overruled and the judgment for Stratton was affirmed.

## Legal Principles

- Riparian rights permit reasonable use of water in connection with the riparian estate for lawful purposes within the watershed, subject to the equal rights of other riparian proprietors.
- Diversion of water to a noncontiguous estate or outside the watershed is not, by itself, actionable; liability requires actual injury to the lower proprietor’s present or reasonably foreseeable uses.
- In the absence of injury, an upstream diversion outside the watershed does not support recovery of even nominal damages.
- An incorrect damages instruction does not require reversal where the record shows substantial actual harm and the error could not have affected the outcome.

## Conclusion

The court affirmed a verdict for the lower riparian mill owner but clarified that off-tract or out-of-watershed diversion by an upper riparian proprietor does not justify even nominal damages absent proof of actual injury to the lower estate’s reasonable uses.


Stratton v. Mt. Hermon Boys’ Sch., 216 Mass. 83, 103 N.E. 87 (1913)