The plaintiff alleges in his complaint that he is the owner of a farm in the town of Wawarsing, Ulster county, N. Y.,
The dam of the defendant is two and one-half or three miles down stream from the farm of the plaintiff. It was constructed by the defendant in the year 1908 and such construction was modified in the year 1909 and again in the year 1914. The dam is used by the defendant in connection with his business of manufacturing cutlery. It causes the water of the stream to overflow a portion of the plaintiff’s farm. It is conceded that the damages of plaintiff are $1,000 provided the defendant' is hable therefor.
The dam is on a tract of land of about 150 acres, being part of 226 acres which in the year 1853 were conveyed by Richard C.- Van Wyck to Joseph H. Tuthill. Shortly after such conveyance to him Tuthill .on the site of the present-dam erected a dam for use in connection with a saw mill and by means thereof caused the water of the stream to overflow the land now owned by the plaintiff.
In the years 1867 and 1868 Tuthill by two deeds conveyed to the President, Managers and Company of the Delaware and Hudson Canal Company the said 150 acres being part of the land which had been conveyed to him by Van Wyck. These deeds also purported to convey the right to maintain a dam as -such right had been exercised by the said Tuthill affecting the lands of others as well as his own lands and the later of the two deeds contained the following provision: “ It being the true intent and meaning to convey to the party of the second part and their successors forever the full right of damming the water in the same manner and the same height to which the said Tuthill has [hitherto] maintained it
The canal company used the dam until the year 1885 or shortly thereafter for the purpose of feeding its canal several miles distant, causing the impounded water to overflow the land now owned by the plaintiff as it had done during the ownership of Tuthill. The trial court made the following finding: “ The use of this dam for the storage of water was discontinued by the Delaware & Hudson Canal Company, the then owner of the dam about the year 1885 or ’87, and in 1889 it was partially torn open.” From that time until the construction of the new dam on the same site by the defendant in 1906 there seems to have been no interference with the farm of the plaintiff by the impounded water of the dam. In the meantime and in the year 1898 the plaintiff acquired title to his farm and produced crops on that portion thereof which since the construction of the new dam by the defendant has been inundated with water.
In the year 1899 the Delaware and Hudson Company (formerly the President, Managers and Company of the Delaware and Hudson Canal Company) conveyed to William C. Rose and he conveyed to this defendant the same property which Tuthill had in the years 1867 and 1868 conveyed to the said company. Such deeds of conveyance purported to convey the same right to maintain a dam and overflow lands as was exercised by Said Tuthill. Subsequently and in the year 1908 the said company and the said Rose executed additional conveyances, confirming, amplifying and making more specific the easement to construct a dam and swell back the water which had previously been conveyed to the defendant.
This case has been decided on the theory that the defendant acquired the easement in question by virtue of a grant. The finding is: “ That by the conveyances aforesaid * * * the defendant became * * * the owner and possessor of the right to dam, store and impound the ivaters of the Good
The right of the defendant to the easement in question must, therefore, depend on a prescriptive title. Whether or not there is such a prescriptive title is a question of fact which apparently has not been decided by the trial justice. The findings state that the predecessors in title of the defendant for more than twenty years overflowed the plaintiff’s property but it is found that they did so by virtue of a grant. There is no finding that they did it under a claim of title exclusive of any other right or that they did it adversely or in hostility to the rights of the owners of plaintiff’s farm nor are any facts or circumstances found from which it may be inferred that the defendant has acquired a prescriptive title. Not an elemem:
It has been found that during the occupancy of Tuthill and the canal company the impounded waters flowed* back over the lands now owned by the plaintiff to the same extent as they have done since the construction of the defendant’s dam. But those findings were necessary in order to support the contention that the defendant had not by his acts exceeded the terms of his grant. In making those findings the learned trial justice placed the burden of proof on the plaintiff. His theory was that the defendant operating under a grant the burden was on the plaintiff to show acts in excess of such grant. In proving a prescriptive title the burden of proof clearly is on the defendant. (Lewis v. New York & Harlem Railroad Company, 162 N. Y. 202, 220.) Such findings, therefore, are valueless as affording a basis for the conclusion that the defendant has a prescriptive title to the easement in question. It is true that the trial justice found at the request of the plaintiff that “ the burden in this action is upon the defendant to show a right to flood plaintiff’s lands.” But that finding was coupled with a refusal to find that there was no “ grant or deed affecting the plaintiff’s property ” and that “ defendant’s right to floo'd plaintiff’s land with his dam depends entirely upon a prescriptive right acquired through user of the so-called Tuthill dam.” The theory of the trial justice was that the defendant met the burden “ to show a right to flood plaintiff’s lands ” by showing the grant of a right to do so and that then the burden was on the plaintiff to show acts in excess of such grant and on that theory and with the burden of proof thus placed on the plaintiff it was found that the defendant had not caused the water to overflow the land of plaintiff to any greater extent than during the operations of Tuthill and the canal company. That we have properly analyzed the findings
For the reason, therefore, that the evidence establishes no grant to the defendant of the easement in question and that the question of his prescriptive right thereto has not been decided or if it has been decided that such decision was not reached by the application of correct legal principles, the judgment herein cannot be sustained.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment reversed and new trial granted, with costs to appellant to abide the event.