— The case presented by the bill of excep*53tions arises on a complaint, authorized by statute, to recover damages for an injury occasioned by flowing the waters of South pond, upon land alleged to be owned by the complainant. His land is bounded “ easterly on said South pond.” If that boundary extends to low water line, it is not denied, that some part of his land has been flowed by reason of a mill-dam occupied by the respondents.
The defence rested upon two grounds. — First, that the complainant by his conveyance acquired no title below the water line of the pond at the time, when the conveyance was made.
Secondly, that the owners of the mill-dam had enjoyed the right to flow the lands to the same height for twenty years, and had thereby acquired the right to continue to do so ; and that a grant of that right was to be presumed.
South pond appeared to be a natural body of fresh water, the height and extent of which had been increased for more than twenty years, before the complainant purchased his land bounded upon it.
The jury were instructed, that the complainant acquired a title to the land bounded upon the pond, to the margin of the pond at low water mark, considering the pond to be permanently enlarged by reason of the mill-dam.
It is in argument insisted, that in analogy to the rule of law, which limits a conveyance of land, bounded upon the sea, or upon waters in which the tide flows and ebbs, to high water mark, the conveyance in this case should be so limited.
That rule appears to have arisen from the considerations, that the right of navigation upon such waters was a common right. That all the subjects or citizens of the country were entitled to navigate such waters, and that the use of the shore was essential to its full enjoyment. That the sovereign power could not have intended by a grant of land bounded upon navigable waters to infringe upon that common right. That the grantee could not have expected thereby to acquire a title, which would be in conflict with the most beneficial use of *54that common right. These considerations not being applicable to waters not navigable, conveyances bounded on streams of fresh water above the ebb and flow of tides were regarded as conveying the land ad filwm medium agues. The sovereign power can have no occasion to retain the title to soil around ponds between the lines of high and low water for any purpose of navigation. The use of the waters of such ponds at all seasons is of great importance to the owners of the adjoining lands. When the water is low, its use becomes more desirable and valuable. As the title of the sovereign to a strip of land between the two water lines could be of no use to the public, no presumption can arise of an intention not to grant it. Such waters are most valuable to the owners of land adjoining them for purposes, for which tide waters cannot be used. Unless rebutted by some proof, the presumption is, that it was the intention of the parties to a conveyance of land bounded by a pond, that the land should be bounded upon it at all seasons of the year, and not while the pond remained only at the level existing at the time of the conveyance.
It is said that the Court has no power to extend the conveyance by construction.
It does not propose to do so ; but to decide, whether it was the intention of the parties to a conveyance of land, bounded upon a pond, that it should be bounded by it at all times, or only when the water was neither so high or so low as to be above or below a certain water line. If the doctrine insisted upon were to be adopted, a person who received a conveyance of land adjoining a pond, when the water was quite low, might convey it to another at a more elevated and yet not high state of the water with a like boundary, and retain a small strip of land between those two water lines; and there might, under the application of the doctrine, be several strips of land thus owned by different persons, when conveyances were made at several different states of the water.
No grantor or grantee can be supposed to have had an intention to produce such results.
*55The instructions are supposed to be in conflict with the decision of this Court in the case of Bradley v. Riee, 13 Maine, 198. That case decided, that a conveyance of land bounded upon a pond formed, as the one referred to in this case is, partly of the waters of a natural pond and partly by waters accumulated by a dam erected at its outlet, was limited to the margin of the pond as then enlarged. It did not decide, whether such margin was to be found as it then existed or when the waters were high or low'.
The opinion in the case of Waterman v. Johnson, 13 Pick. 261, states, that “ a large natural pond may have a definite low water line, and then it would seem to be the most natural construction, and one which would be most likely to carry into effect the intent of the parties, to hold that land bounded upon such a pond would extend to low water line, it being presumed, that it was intended to give to the grantee the benefit of the water, whatever it might be, which he could not have upon any other construction.”
It is not perceived, why the same presumption respecting the intention does not arise, when the land is bounded upon a natural pond after it has been for a long time enlarged by artificial means, and thereby determine, that the line of boundary is to be found at low water mark.
in the case of Handly’s Lessee v. Anthony, 5 Wheat. 374, it was decided that the State of Virginia, when she ceded the territory north-west of the Ohio river to the United States, retained the whole bed of that river, and yet that the land on the north-west side of it was bounded by low water mark. Maiishall, C. J. says, “ wherever the river is a boundary between two States, it is the main, the permanent river, which constitutes tire boundary ; and the mind will find itself embarrassed by insurmountable difficulty in attempting to draw any other line than low water mark.” There will be found a similar difficulty, when a pond is the boundary. No other line can well be established by proof, when any considerable time has elapsed since the conveyance was made.
Vattel, when speaking of lakes, observes, “ If some of the *56lands bordering on the lake are only overflowed at high water, this transient accident cannot produce any change in their dependence. The reason why the soil, which the lake invades by little and little, belongs to the master of the lake and perishes with respect to the ancient proprietor, is, because the proprietor has no .other limits besides the lake, nor any other marks besides its bank, to ascertain how far his possession extends.” Vattel, B. & C. 22, § 273. This doctrine is alike applicable to large ponds, and if a line as permanently existing could be established at the margin of the waters at the time of the conveyance, its application to them would be excluded. Such line could not be varied by a permanent encroachment of the pond.
To establish a right to flow the lands of the complainant, the jury were by the instructions required to find, that the owners or occupants of the mill-dam had continued without interruption to flow the land for twenty years, doing thereby some damage each year. To establish an easement according to the common law, it would not be necessary to prove, that the owner of the land suffered damage. The reason for requiring it in a case like the present, was stated in the case of Nelson v. Butterfield, 21 Maine, 220.
The argument is, that such instructions must be erroneous, as they would prevent the owners of the mill-dam from obtaining a right to flow, if they had been prevented for one year only of the tw'enty, from flowing by a prostration of the dam by an extraordinary rise of water, or by a necessity to make repairs upon it, or to rebuild it.
Such a result was noticed, and the objection obviated, so far as the facts required that it should be, by instructions that the omission to flow during the time, while the dam was being rebuilt or repaired, should not be considered as preventing the owners from acquiring such a right, those seasons being regarded as they would have been, had the flowing been’ continued.
The case of Dana v. Valentine, 5 Metc. 8, cited and relied upon by the counsel appears to favor the doctrine, that twenty *57entire years’ adverse use, would not be required to establish the right, and that there might be a voluntary omission to exercise the right for about two of those twenty years.
A voluntary omission to exercise a right cannot afford evidence of a continued adverse claim or exercise of the right. There are to be found in the books- some other cases, which would authorize the presumption of a grant of an easement or servitude upon the land of another by proof of an adverse use of it for a period short of twenty years. Such cases are at variance with the general current of authority and cannot, as Mathews observes, be supported. Mathews on Pres. 363.
The case of Moore v. Rawson, 3 B. & C. 332, cited in the last case, recognizes the doctrine, that there must be proof of twenty years’ adverse enjoyment of the flow of light and air to authorize the presumption of a grant. It admits, that the right thus acquired, would bo determined by a voluntary omission to exercise it without manifesting any intention to resume it.
Where land is not flowed, because the dam occasioning it must be repaired or rebuilt, that it may be useful, the very act of rebuilding or repairing, is the exhibition of an intention to maintain and to resume the exercise of the former use of it.
To acquire an easement or servitude upon the land of another, there must be proof of an uninterrupted and adverse use of it for twenty years, or, if such use be omitted for a time, evidence that such omission was not voluntary but unavoidable accompanied by the exhibition of an intention to resume the use as soon as practicable. And when the right asserted, be that of flowing land in this state, it cannot be acquired without proof, that the land was thereby injured during each of those twenty years. The reasons for this were sufficiently assigned in the case of Nelson v. Butterfield.
One of the respondents had been defaulted, and he was offered as a witness for the other and excluded.
If either branch of the defence had been established, it would have been effectual to prevent a maintenance of the *58process, which the witness was directly interested to defeat. He was therefore properly excluded.
Exceptions overruled.
Note.— Wells, J. having been of counsel took no part in this decision.