The opinion of the Court was pronounced by
The record shows what evidence the plaintiffs introduced to support the issue on their part; also the evidence which the defendant introduced. If the jury found the Facts which the defendant’s evidence tended to prove, what is the operation of law upon these facts ? Before I attempt to answer this question, I will state the law as -it is generally understood in England, and in the United States, in the case of Barber vs. Shaw et al. 6 East. 208, the Court say, an adverse right may exist founded on occupation of another. And though the stream be either -diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades,- yet if the occupar tion of the party- so taking, or using it, has existed for so long time as may raise the presumption of a grant, the other party whose land is below, must take the stream subject to.such adverse light. I take it, that twenty years exclusive enjoyment of the water in any particular manner-, affords a conclusive presumption of right in the party so enjoying it, derived from grant, or act of Parliament.
Baylies, J.Swift, Ch. J., says, “ A special right, different from the general one, may be acquired by an adjoining proprietor, by grant, or by possession for such length of time as will furnish presumptive evidence of a grant. In England, it has been decided, that twenty years' exclusive enjoyment of water in a particular manner, affords a conclusive presumption of a right in the party enjoying it, derived from some individual having the power to make it, or from the Legislature ; and in this State, fifteen years exclusive enjoyment will furnish the same evidence. Such exclusive right, however, must be measured and limited by the extent'of its enjoyment, and the occupier can no more enlarge it, than he can assume a new right.” — Ingraham, vs. Hutchinson, 2 Con. R. 584.
Mr. A-ngell, in his valuable Treatise on the Common *380Law, in relation to Water Courses, page 4.2, sayá, “ The ’ . . . , *. j privilege of using the water m any particular manner, ana of diverting it in any quantity, may also be acquired by usage; which, when continued without interruption for a great length of time, lias all the validity and effect of an express grant.” He refers to 2 Vernon, 390, and Sull. on Land Tit. 273. In page 44, he says, “ The principle of •acquiring a right to incorporial hereditaments by an enjoyment of ¡twenty years, is derived from the Statute 21 Jac. I, which enacts that no person shall make entry into lands, but within twenty years next after his right or title shall first descend or accrue to the same.” He also says, “If a water-course is in any way diminished in quantity, yet if the occupation of the party taking and using it, has existed for twenty years or more,^the party whose land is below, must take the stream subject to the adverse right.” In page 48 he says, “ The usage, which is thus supposed to be founded on a grant or agreement, will determine the extent of the supposed grant. The right granted, is considered to be commensurate with the right enjoyed. A person, who has enjoyed a limited right, cannot lawfully enlarge it to the detriment of others ; and in case of such enlargement, those who are prejudiced may lawfully obstruct the use in the newly acquired part; but still he will be entitled to his former right, both to the same extent, and in the same specific manner.”
Chancellor Kent (3 Com. 356) says, “ The general and established doctrine is, that an exclusive enjoyment of water or of light, or of any other easement in any particular way for twenty years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person, which might have been, but was not asserted. The right is confined to the extent, and the mode of enjoyment during the twenty years. All that the law requires is, that the mode or manner of using the water should not be materially varied to the prejudice of other owners; and the proprietor is not bound to use the water in the same precise manner, or to apply it to the same mill; for such a construction of the rule would stop all improvements in machinery. He is only not to vary the enjoyment to the prejudice of his neighbor.”
*381If ii be true that, the defendant “ erected a mill-dam up-» on the same site which he had owned above forty years ago, and more than twenty years before the erection of the plaintiffs’ furnace — that the dam in question was erected about twelve or fourteen years previous to its going off— that it was built substantially, and was safe and secure as dams in general — that it was kept in repair, &c.,” as the evidence tended to prove; then the defendant acquired certain rights : that is, by a usage of forty years he acquired the right to have, and support a dam across said stream, and to raise the water to a certain height. And also by forty years exclusive enjoyment of the water in the pond, raised by said dam, he acquired a right to the use of the water in future, as he had used it in time past. In analogy to our Statute of Limitations, these rights were perfected after the lapse of fifteen years. And notwithstanding these rights, the defendant’s duties and liabilities might be greatly increased by other persons’ erecting mills on the same stream. Before the plaintiffs erected their furnace,! the defendant, if he injured no person above nor below him, might raise the water in the pond to any height he pleased, and might suffer his dam to decay, till the water crushed it, and went off in a body. But after the plaintiffs erected their furnace below on the same stream, the defendant could not lawfully raise his dam above its usual height so as to lessen the flow of water to the plaintiffs’ furnace ; nor suffer his dam to decay, break down, and let off all the water at once, to the injury of the plaintiffs.
But the defendant was subject to the maxim, Sic viere tuo ut aliemm non ladas. To comply with this requisition of the common law, it was the duty of the defendant to have used ordinary caro and diligence in making repairs to his dam ; or in drawing off the water from’his pond, to prevent injuries to the plaintiffs’ furnace. If the defendant did not use this care and diligence, he was guilty of negligence, and liable for consequential damages 3 but he was not liable for inevitable accidents.
After the defendant’s land was attached in this suit, he deeded a part of the same land, with the attachment thereon, to Pratt Curtis, whose interest it was to remove this in-cumbrance from the land. With this interest existing, *382Pratt Curtis was not a competent witness to testify for the defendant.
Inasmuch as the County Court admitted said witness to testify on the part of the defendant, and instructed the jury contrary to the aforesaid principles of law, as to the defendant’s duties and liabilities, the judgement of the County Court is set aside, and a new trial granted.