Bliss v. Rice

Putnam J.

delivered the opinion of the Court. We consider the questions submitted to us, on the ground that the «defendant Rice had the lawful possession or title to the land on the south shore bounded northerly by Mill river, opposite to the saw-mill privilege on the north shore, owned by the parties as tenants in common.

The plaintiff claims, that the proprietors of the saw-mill on the north side of the river, own the whole stream or water power of the river, together with the dam, and a right to abut the dam upon the south shore, and a right to flow any lands on the south shore which can be flowed by means of the dam, for mill purposes.

The defendant Rice resists that claim, and he claims as owner of the south shore, a right of property in the soil to the thread of the river and in half of the stream and of the dam ; — or if the proprietors of the saw-mill have acquired a right to abut their dam upon the south shore, Rice alleges that it is for the limited purpose of raising a pond to drive a sawmill only :— and he claims that the surplus water, viz. that which runs over the top of the dam, belongs to him rightfully as he has drawn and used it, as the riparian proprietor of the south shore.

We proceed to inquire, whether the proprietors of the saw-mill have an absolute, or only a qualified right to the river against the south shore opposite to their mill privilege.

In 163S the site now occupied for the saw-mill was granted by the proprietors of Springfield to William Pynchon. It is part of 17 acres then granted, and it was then “ adjoining to the mill.” William Pynchon conveyed to John Pynchon and others, in 1654, and it is stated in the conveyance, that the land had been given by the town to William Pynchon for a mill lot; that it contains 17 acres, more or less, with the mill standing on it, and all its appurtenances; that the breadth is 20 rods, and that it runs in length east from the great [Con necticut] river until the 17 acres are made up ; and that it is bounded on the south by the Mill river. The saw-mill of the plaintiff is upon a part of the 17 acres granted for a mill lot, and the bounds of the lot can be ascertained at this day with great accuracy. The proprietors of the township owned on both sides of the Mill river, and the whole of the stream.

It does not appear when the first dam was. built upon this privilege ; and there is no record produced, of a saw-mill being upon this site until 1742. The south shore is precipitous and of solid rock or red stone, and no mill or machinery was ever placed there until 1809, when a smith’s shop was erected there by the Messrs. Bartlett, who paid the proprietors of the saw-mill for the water they used.

Dams have been repeatedly rebuilt by the proprietors of the saw-mill lot, within the time of memory, (according to the testimony of Obed Lombard,) of about the same height with that now existing and upon or near to the same place. <£ They had (said Lombard) the exclusive and uninterrupted use and occupation of the dam and water of the saw-mill pond. He never heard their right challenged by any person or persons within his memory; (he was 68 years old ;) he never knew of the water of said pond being used or enjoyed by any other person, until the Bartletts built their shop ; and they made no claim to any water except what they hired of the saw-mill owners.” The defendant’s shop is upon the place where the Bartletts’ was.

This evidence is corroborated by several witnesses, and is wholly uncontradicted. Indeed the opening counsel for the defendant admits that ££ the evidence undoubtedly is, that until 1818 no water had been used upon the south shore withou the license of the saw-mill owners, for mill purposes, and that the saw-mill owners have not been interrupted in the use of tile dam and water of the pond.”

Now taking it for granted, (which is not proved, however,) that at the time when the dam was first built, the land on the south side of the river was owned by other persons than those who owned the mill lot, and that the burden of proof is on the plaintiff to establish his right to the dam, &c. what is the !egal result from the above facts ? Unquestionably (as we all think) that there was a grant from the owners of the south side of the river to the owners of the mill lot on the north side, that the latter should have a right to build the dam and raise a head'or pond of water for mill purposes, for their own use. And if the grantor owned the land on both sides and the stream, the grantee would be legally entitled to the same rights and privileges.

It is however contended for the defendant, that the owners of the south shore were not injured by the acts of the owners of the saw-mill, until they had occasion to use the water, in virtue of their right of property to the thread of the river ; and therefore the claim which the owners of the mill lot made, was not adverse, and it affords no presumption of a grant.

But unless there were a grant of a right to build a dam, the owners of the mill lot must have made a direct and injurious invasion upon the owners pf the south shore, by taking the actual possession of their land from the thread of the river on the south side to the south end of the dam ; and this was the occupation of a mill privilege. What act could be more notorious, adverse, and injurious ?

We all think that a jury should be directed, under the evidence above stated, to presume a grant from the owners of the south shore to the owners of the north shore and mill lot, to build the dam, and to have all the benefit, water power and privileges which would arise from the erection of the same. The extent of their right would be measured by the height and capacity of the dam, and not by the partial use of the water power created by it; unless the owners of the south shore could establish the fact, that the grant was made with limitations or reservations. And the burden of proof of the limitations or reservations would rest upon the defendant His counsel have earnestly contended, that the owners of the mill lot have occupied only for a saw-mill, and have no more right than to water enough to drive a saw-mill; and that the grant should be presumed to have been made with limitations corresponding with the subsequent use of the water.

But if we are right, that the legal presumption from the facts is, that the owners of the south shore granted to the owners of the mill lot on the north shore a right to build a dam across the river, it would necessarily follow from the exercise of that right, that thereby the grantees appropriated all the water of the river to their own use. Such would prima facie be the legal result; and the circumstance, that the proprietors of the mill lot set up one kind of mill rather than another, or that they did not, or perhaps that they could not profitably, erect mills with sufficient machinery to require all the water of the river at all times, ought not to be considered as sufficient to limit the grant, or the water power which could be obtained by the dam. It may be, that in large rivers a beneficial use may be obtained by a dam on one side of the river, without butting it upon the other side. Instances of this kind may be found upon the Connecticut river. But in such cases it is the dam, and not the use of the water, that regulates the right, in the absence of any limitation or reservation in the grant of the right to build the dam. But the grant which must be presumed in this case, of the right to build the dam across the river, and the building of it and continuing and renewing of it, at their own expense, for their own use according to the evidence, was an appropriation of the whole stream and mill privilege adjoining to that part of the mill lot now owned by the proprietors of the saw-mill.

Such appears to have been the claim of the proprietors of the mill lot, and no adverse pretension is made until nearly eighty years after a saw-mill was set up upon the plaintiff’s mill lot. In 1818 M‘Gregory, owning the land now belonging to the defendant on the south shore, set up a claim substantially like that now made by the defendant. It appears that the Bartletts purchased the same land on the south shore in 1804 ; but that so far from making any claim adverse to that of the owners of the saw-mill, they hired and paid the owners of the saw-mill for what water they took. We have three receipts, one, June 1, 1809, another, August 27, Í8I2, another, August 27, 1813, showing this fact. The last receipt is dated within twenty years of the filing of the plaintiff’s bill, which was on the 20th of May, 1833. If the Bartletts had thought that they had a right to the water, we do not believe they would have hired it of the saw-mill owners. The apologies which the ingenious counsel of the defendant make for that act of the Bartletts, are altogether unsatisfactory. We cannot suppose, from the spirit manifested by the claimants of water power in this State, that such a right would be surrendered merely to avoid a lawsuit. And although they took the water by a conductor cut into the top of the dam, and the defendant takes the water by a conductor let into the pond above the dam, yet substantially it was the same thing, so far as it regarded the owners of the saw-mill. It was the water which was obtained by the one or the other mode, which was then the subject of hiring by the Bartletts, and which is now claimed as of right by the defendant, as the owner of the same land on the south shore of the river. The suggestion that the Bartletts might have wanted the water for some temporary purpose, is not warranted by the evidence, and if it were, would not justify the inference, that they waived their legal rights. Nor is the suggestion, that they would have subjected themselves to repairs upon the dam to a greater amount than the hire, a satisfactory explanation. For upon the hypothesis of the defendant, the dam was granted to the proprietors of the mill lot on the north shore, opposite to the defendant’s land, with a reservation of a right to take the water that should run over the top of the dam ; and if so, the exercise of that right would not have subjected the owners of the south shore to any expense of repairing the dam. We .cannot but regard the fact of hiring as a very strong proof and acknowledgment of the absolute right of the saw-mill owners to the whole water power. The acts and declarations of the Bartletts upon that matter, being against their owrn interests, were clearly admissible

The water, a foot, more or less, in depth, that runs over the top of the dam, is not, as it regards the mill owners on the north side, to be considered waste or surplus of no value The head, and of course the water power, is thereby in creased. And it should be kept in mind, that it was the water power which could be obtained by the erection of the dam, which was granted by the owners of the south shore to the owners of the north shore. It is very clear to us, that the owners of the south shore could not lawfully do any act which should interfere with that grant.

Nor were the proprietors of the mill lot obliged to use the water for a saw-mill merely. The presumption is, that it was a grant to make a dam to raise the water for mill purposes. It is an old and familiar doctrine, that the owner of the water power may change his mill, e. g. a corn-mill to a fulling-mill, &c., as his interest may direct. In the absence of reservations or limitations, the use to be made.of the water power is to be regulated by the grantee.

It is contended for the defendant, that the easement has been extinguished by unity of possession, inasmuch as the defendant is owner of the south shore, and owner, as a tenant in common, of the mill lot opposite. But the evidence does not prove such a unity of possession as would destroy any easement ; for there is no proof that, from the time unknown when the dam was first built, unto the present time, the same individuals have owned this mill privilege and the land adjoining to it on both sides of the river.

But it is contended for the defendant, that he had the verbal permission of George Blake, one of the tenants in common, to draw the water, until the time when Blake conveyed his shares to the defendant, and that afterwards the defendant became tenant in common and entitled to draw the water as he has used it.

This leads to the consideration of the rights and pow'er of tenants in common in and over this common property.

It is very clear that they cannot lawfully do any acts which go to the destruction or injury of their common interest; and no such claim is made by the defendant. It is contended however for the plaintiff, that the introduction of the conductor "nto the pond above the dam, and leading the water by the side of it to the works of the defendant, is an act tending to weaken and destroy the dam, and necessarily therefore unlawful. But the evidence is entirely satisfactory to us, that the taking out and conducting the water as the defendant has done, does not affect the security of the dam. The testimony of Sexton, of Badger, and of White, to that point, is direct. The thing indeed speaks for itself. The channel is cut in solid rock or red stone, and secured by planks. From the evidence, we are satisfied that there is no danger to the common property ; the act of the defendant cannot therefore be regarded as tending to its destruction. But if it should prove otherwise, the party constructing the channel would be answerable to the co-tenants who do not consent to the making of it.

In the present aspect of the cause, the evidence does not satisfy the Court, that an injunction should be granted against the use of the channel by the defendant, merely on account of the apprehended danger to the dam.

The bill and answer admit that the parties are tenants m common. The evidence is, that they have generally, if not uniformly, by verbal agreement, occupied in severalty one day for each share, for their whole number of shares, successively. Now that is the manner in which parceners may have partition of entire inheritances, which cannot be divided by metes and bounds : — of a villein, for example ; one may have his service one day or month, and afterwards the other, for another day or month. So of an advowson ; they may present by turns. So of a mill; for one shall have it for so long a time, or one toll dish, and the other, for a like time afterwards, or the second toll dish. Com. Dig. Parcener, A 2, citing Co. Lit. 164, 165.

The same mode of partition would apply here, as to tenants in common. We regard the mode in which' the tenants in common of the saw-mill have occupied, as both equitable and legal. Such agreement or license by parol would be valid during its continuance.

We are not called upon in this suit, to settle the number of shares to which the co-tenants are respectively entitled, but the rights and privileges applicable to the parties, touching the use of their shares respectively. We take it for granted, that the parties own as they have occupied, viz. that the plaintiff has nine, and that the defendant has fifteen twenty-fourth parts or shares. The defendant occupied by the parol license of Blake, until Blake conveyed, and afterwards under the deed of Blake. Then the defendant, during his turn, would have the entire and several use of the common property for fifteen days, and the plaintiff the entire and several use of it for the next succeeding nine days, and so onward as long as the parties should agree so to occupy, or until an actual partition should be made by some proper legal process, upon the principles before stated.

We are of opinion, that in and during the several turns, each occupier is legally entitled to have the use of the whole property which is owned in common, and neither could obstruct or interfere with the other in regard to any mode of using the water power, which should not be injurious to the common property.

We have seen that the defendant’s taking the water from the pond, above the top of the dam, by means of his channel, is not now considered to be injurious to the dam. And we are of opinion, that during the defendant’s turn he had the right to conduct and use the water by means of his channel and conductor, as he has done, and that no injunction should issue to restrain him from such a use of the water during his turn. It is however declared, that any damage or injury that may (contrary to the evidence and present appearances) happen to the dam or other property owned in common, by means of the defendant’s channel or conductor, and of his taking the water thereby, as now constructed, shall be made good by the defendant to the co-tenant. In this respect he takes the water, continues the channel and uses the same during nis turn, suo periculo. And when his turn is finished, he is effectually to close the channel or conductor, so that no iart of the water shall be taken thereby from toe pond, during the plaintiff’s turn. In all other respects the defendant is entitled, during his turn, to the several use of the whole property owned m common, without account to his co-tenant, excepting in regard to any acts that are injurious or destructive to the common property. And from the premises it follows, that the plaintiff, during his turn to occupy for his nine days, or shares, is to have the several use of the whole property owned in common, without account to his co-tenant, excepting for or in regard to any acts that are injurious or destructive to the common property.

An injunction is to be granted to restrain the defendant, during the plaintiff’s turn, from taking any water from the pond by means of the defendant’s channel, or otherwise, for mill purposes.

The defendant is accountable in this suit, to the plaintiff, for the use the defendant has made of the water, during the plaintiff’s turn. It was either waste or nuisance so to take it; waste, if done under Blake’s license or deed ; nuisance, if done by the defendant as a stranger. We think he is to be considered as having acted under Blake, who was the co-tenant with the plaintiff.

Under this process the Court has full power in equity to adjust the claims of the parties. The plaintiff is unquestionably entitled to damages. Having expended a great deal of labor upon this cause, and become somewhat familiar with the facts, we are disposed to save the parties from any further litigation and expense, by determining the amount of damages ourselves, instead of referring that question to a master.

The testimony of Walter Warriner and of Jonathan Pease has some bearing upon this matter.

It is contended for the defendant, that these witnesses are interested, because they were to have a certain sum per thousand for tending the saw-mill and that they would have sawed more if the defendant had not taken any. part of the water during the plaintiff’s turn. If they have such an interest, it is, from the whole evidence, too small to be measured with any tolerable exactness. But if they have been injured even in their minute interest, unless it should fall within the rule de minimis &c., they must bring their appropriate action, and the judgment in this suit will be no evidence in their suit. They are not parties to this record, and the damages will belong entirely to the plaintiff.

Some question has been made as to the time up to which the damages are to be calculated, whether to the time of bringing the bill, or to the filing of the answer, or to the final decree. And considering that, in effect, this is in the nature of ascertaining what should be paid for the use of the plaintiff’s property, and that evidence has been taken of the value since the bill was brought, as well as before, we are disposed to carry the calculation up to this decree, and not leave the small matter of damages from the commencement of the suit to the time of the decree, a subject for future litigation. It is, after all, rather a matter of account, than a wanton act of trespass, which is now to be adjusted. If it were of the latter character, we should stop at the bringing of the bill, or at most, the filing of the answer, to give the party defendant an opportunity to answer further. But we here see the whole controversy as to this point. The question is, how much ought the plaintiff to recover of the defendant for the use which the defendant has made of the water, during the plaintiff’s turn for using it. And upon a careful review, of the evidence, without now giving it in detail, we think it should be at the rate of twenty-four dollars a year for the nine shares claimed by the plaintiff.

Decree accordingly, with costs for the plaintiff.