The plaintiff claims damages against the defendant for maintaining a certain dam at the outlet of Jenness pond, from the first day of January, 1867, to the date of the writ, and thereby causing his land to be flowed so that he lost the use of it.
The damage shown was, that the plaintiff's land, which was cleared in 1831, and had been mowed and borne cranberries every year till 1869, had since that time been so flooded by the defendant's dam that *Page 125 it could not be mowed; that the cranberry vines had been destroyed, and the trees had died; and that this damage had been caused by the defendant's management of the dam, which he had fully controlled, and from the possession of which he had excluded the plaintiff.
This dam, and a former dam which this had replaced, had been used to supply water to an ancient saw-mill, under an agreement between the plaintiff's father whose rights he had, and the party whose rights the defendant had, which agreement by its terms was to endure during the life of the mill; and I infer from the plaintiff's argument that the plaintiff and the defendant were tenants in common of this dam.
Subject to the rights of the owners of this mill, the plaintiff, for twenty-nine years before the commencement of the action, had drawn water to supply his shingle and clapboard mill, but had not excluded the other tenants in common; and the evidence tended to show that by the use of the saw-mill until its "death," in 1859, and by opening the gates afterward, the water had been so drawn down that in the summer months and in September and October the plaintiff's land had not been flowed, and had been in suitable condition for cultivation; but that after 1868, the defendant had assumed exclusive control of the dam, and so maintained the dam and managed the water as to do the injury complained of.
The plaintiff acquired his title in 1831; and the defendant offered evidence tending to show that he had flowed the land at some seasons of the year before the plaintiff acquired his title.
The plaintiff, having made out his title to the land, and shown the damage done to him by the flowage, it was incumbent on the defendant to make out his right.
The defendant's first claim was, that the plaintiff, being tenant in common with him of the dam, was as much to blame as he was for letting the saw-mill fall into disuse, and so for all that class of injuries he was estopped from complaining, — which the court very properly denied, because the plaintiff was not claiming damages for any such injury.
The defendant further asked for the instruction that his neglect or refusal to open the dam would not make him liable, which the court admitted to be true so long as the defendant had not excluded his cotenants, but denied to be true at the time covered by the plaintiff's action, when he had, as it appeared, assumed exclusive control.
In the case of Fifield v. Bailey, post, it was held that the disseizee could maintain an action on the case against the disseizor for a nuisance maintained by him on land of which he had wrongfully dispossessed the plaintiff. I fail to see that the case is in any respect different when the disseizor was a tenant in common with the disseizee.
It may be remarked here, that the defendant's claim that he and the plaintiff were occupying the dam as tenants in common, and therefore equally responsible for the flowage, is necessarily fatal to the defendant's claim of any prescriptive right, it being well settled that a party cannot acquire a prescriptive right against himself. See Wilder v. Clough, post. The defendant's ground is, that such user as tenants in *Page 126 common must be permissive on the part of the plaintiff, and not adverse.
The defendant also claimed that, having shown that he had flowed the land, the law would presume that his right to flow continued until he was shown to have lost it. This would seem to have been a statement in a new form of the doctrine of Dunklee v. The Wilton Railroad, 24 N.H. 489, that property conveyed, passes subject to all existing easements; but that doctrine in that case is limited to rightfully existing easements, which the court rightly held must be the limitation here.
The other instructions claimed by the defendant, so far as disallowed by the court, were attempts not in conformity with the law to substitute some secondary measure of the extent of the prescriptive right, instead of the actual extent of the flowage.
Nothing can be more fallacious than the idea that the height of a dam can be the measure of the right to flow gained or lost. Suppose, for instance, a party maintains his dam at a certain height, and afterward, by improved reservoirs or other means, the water is so increased as that instead of being dried up in the summer months, the pond should be kept full of water during the whole season: land which under the old mode of usage would be drained in the summer mouths would now become saturated with water during the same season, and the water grasses would take the place of the former more valuable products. The right acquired by prescription to keep the dam at a given height, under the former state of things, would hardly be extended to the latter.
LADD, J. The case shows that the defendant, within the time covered by the declaration, has maintained a dam, and thereby flowed the plaintiff's land. For the damage thus caused he is liable in this action, unless he shows a right so to do. I cannot find anything in the case to sustain the position taken by the defendant's counsel in argument, that the plaintiff is seeking to recover for damage caused by a neglect to use the old mill. The declaration certainly shows nothing of the kind, and I am quite unable to perceive how the use, or disuse and decay, of the old mill bears upon any question we are to decide. The evidence as to how the water was used in connection with the old mill, as well as that with respect to the hoisting of the gate and drawing off the water in the summer seasons after 1859, bore upon the nature and extent of the right to flow, if any, which had been gained against the plaintiff by an adverse user, and was properly received for that purpose.
The injury of which the plaintiff complains is, not that his rights in the use of the water at the mill, or in the control and management of the dam, have been infringed, but that the defendant, who has in fact been in the occupation of the premises, and has had and exercised an actual control and management of the water, has without right so managed it as to flow and injure the plaintiff's land. The refusal of the defendant to hoist the gate is nothing more than an incident in his *Page 127 management and control of the water. I do not see that it matters at all whether he kept the water up by refusing to hoist, or allow to be hoisted, a gate already existing in a dam at the outlet of the pond, or by erecting and keeping up a solid dam there not furnished with any gate at all. I am therefore of opinion that the defendant's position on this point cannot be maintained.
After the plaintiff showed that the defendant had kept up the water and caused it to flow his land, it was for the defendant to show his right to do so. Such right was not established by the fact that the dam had been used prior to 1831, when the plaintiff's title accrued, in the way stated in the case, without showing all occupation and user sufficient to establish the right claimed by prescription. This was not done, and I think the ruling that there was nothing in the fact that the defendant's title is under than that of the plaintiff, etc., was correct.
I see no fault in the instructions to the jury, and all the requests that were proper to be given seem to be covered by the instruction that was given.
The fourth request, as to the putting in of improved machinery and its effect on the condition as to height of the water in the dam, was not called for by the evidence, as is shown by the case, and was properly refused.
As to the defendant's contention that the height of the dam measures the extent and determines the character of a water right gained by prescription, that matter was decided in Gilford v. The Lake Co.,52 N.H. 262, adversely to the defendant's view. The exceptions must be overruled, and there must be
Judgment on the verdict.