1. I think it is impossible to entertain a doubt as to the construction of the deed from Shepard to Shaw. It conveys all the grantor's rights in the river below a line extending across the same from the ash tree, and the right of flowing a certain described tract of land up to the tree. The defendant's contention is, that this means the right to raise the water in perpendicular height up to the body of the tree. It seems to me that would be nothing less than a most extraordinary perversion of language which, of itself, is entirely plain and unambiguous. It is certainly difficult to imagine what terms could have been used to indicate that the grantee's right of flowage should be bounded by a line crossing the river at the ash tree, if these do not. *Page 363 The instructions on this point were in accordance with this view, and were correct.
2. There can be no doubt of the soundness of the general proposition as to flowage given to the jury. No riparian proprietor has a right to throw the water of a stream back upon the proprietors above. But it is said this general proposition should have been qualified by going into an explanation of the doctrines to be applied when the question between two shore owners is one of a reasonable use of the water, and further, by an explanation of how it would be in times of freshet, floods, accumulation of ice, c. The short and complete answer to this is, there is nothing in the case to show that either of these qualifications was called for by the facts; and further, if they were supposed by the defendant to be germane and necessary, there should have been a special request to that purpose.
3. There was clearly no evidence of a right gained by twenty years' adverse user.
SMITH, J. The instructions of the court, in regard to the height to which the defendant could flow, were correct. The deed from Shepard to Shaw, of September 22, 1847, conveys all his right to the river below a line extending across the river from the ash tree, including all his rights below said line, which he reserved in his deed to Eastman, dated December 4, 1830. The strip three rods wide, included in Shepard's deed to Shaw, reserves a strip below said line, and grants to Shaw the privilege of flowing "up to the ash tree." The deed from Shaw to Shepard, dated September 22, 1847, conveys to Shepard the strip four rods wide on the south side of the river, reserving "the right of flowing said tract below said ash tree;" and also conveys "all his right in the bed of the river above the ash tree." Construing these deeds together, as they must be, I think it clearly indicates that the intention of the parties was, to bound their respective rights of flowage by this line; that Shepard conveyed all his right below that line; and that Shaw acquired no right to flow above that line.
If the construction contended for by the defendant is the true one, he could flow up to the body of the tree, and of course as far up the river as would bring the level of the water to a line projected horizontally from the foot of the tree, and thus use the fall of the river above. An examination of the language of the deeds is conclusive that such was not the intention of the parties, and it would leave the upper mill privilege comparatively worthless.
The defendant could acquire no right to flow by prescription. Mitchell owned both privileges, and the lower one in common with Shaw from 1855 to 1862. Both parties claim under him. From 1855 to 1862, Shaw and Mitchell could gain no right by adverse possession against Mitchell; and if Shaw at any time began to acquire such right after 1862, it could not ripen into an absolute right within less than twenty years, which have not yet expired.
The defendant also objected to the instruction that if he, "by means *Page 364 of his dam, flowed or raised the water on the plaintiffs' side of the line to any appreciable extent, the defendant would be liable," — because, as he claims, it makes him "liable for freshets, floods, accumulations of ice, and every other visitation of providence which might produce an extraordinary and unnatural rise in the stream;" — but I think this result does not follow. The instruction was, that he would be liable if he should flow above the line "by means of his dam," and not by means of freshets,c. The construction must mean, the river in its ordinary and usual stages, and not at unusual and exceptional times, when swollen by freshets and clogged by ice.
Exceptions overruled, and
Judgment on the verdict.