The opinion of the court was delivered by
Redfield, Ch. J.
This case has been twice argued, and as we have always been agreed, that, upon one point, the case must be opened, and as that will probably be decisive of the case, we think it best to dispose of it now.
It seems to be admitted, that in any view of the case, the plaintiff had no right or title to the land, certainly to the west bank of the stream, or beyond the center of the channel; but that he did erect his dam upon the defendants’ land, and so continued it for many years, and that finally the defendants removed the dam which is the complaint, in this action.
It has been urged, that the charge of the court, justifying this diversion of half the water from the stream, by means of a dam, half of which rests upon defendants’ land, if it caused no appreciable injury to them, is to be maintained in this country as needful for purposes of manufactures, in our altered circumstances. This would no doubt be very useful, and conducive, in many instances, to the public convenience. But, we find no sufficient basis upon which to rest any such determination. The land, beyond the middle of the stream, is confessedly the defendants’. The plaintiff had no right to use it, more or less, or to abridge either the defendants’ present or prospective use of it. And no court or legislature has any power to give him any such right. It is not needful for one to appropriate the water of a stream to some special use, before he can complain of its diversion by another. If this were so, one having mill sites of ever so much value, might lose all beneficial use of them, and indeed the title, by long continued encroachments upon them, before he got ready to use them, which would establish what was formerly attempted to be maintained, at common law, an exclusive right to use the water, merely by prior occupancy, and in spite of the interest of others.
We think, therefore, the erection of the dam partly upon the defendants’ land, and thus diverting half the water, was an injury of which the defendants might complain, and for which they might maintain an action. And if so, they might remove the obstruction, This may probably be decisive of the action.
In regard to the boundary defined in Moses Robinson’s deed to *232Solomon Morse, tlie court, which, for the hearing of this case, is composed of hut two judges, is not well enough agreed to make any .determination at the present time. There are three views susceptible of being taken in the case. 1st. That the stream is referred to, merely as indicating the direction of the line, and that the boundary is a right line between the monuments named. 2d. It may be the margin of the stream, which is intended to be made the boundary. 3d. This boundary, being upon the side of a freshwater stream, not navigable, may, by construction, be extended to the thread of the stream, ad medium filum aquce. And there is nothing at all decisive, in the decided cases upon this subject, either in this state, or elsewhere. All of these cases profess to go very much upon the same principle, and differ only in its application.— And here, it must be confessed, they often differ very widely. The case of Buck v. Squires, 22 Vt. 484" court="Vt." date_filed="1850-03-15" href="https://app.midpage.ai/document/buck-v-squiers-6574371?utm_source=webapp" opinion_id="6574371">22 Vt. 484, and a similar case decided at the same time, in the County of Chittenden, profess to steer evenly between the two extremes upon this subject, which it must be confessed are apparently somewhat wide apart. And although these cases may appear to some, as that of Buck v. Squires certainly did to me at the time, to have gone to the very extreme of excluding any portion of the stream, when it could fairly be done, without violence to the terms of the contract, it did not profess to go upon any such ground, and no case is authority except for what it professes to decide. And it is by no means certain, that another case, decided by the same court, should exhibit the same extreme tendency. For in the state of Mass., whose decisions the case of Buck v. Squires quoted with approbation, their courts have recently held, in Knight v. Wilder, 2 Cushing, 200, 209, that “ where there is nothing in the conveyance to modify the rule, the side lines of each riparian proprietor must extend from the termini of his lines on the shore, at right angles with the course of the river, to the thread of the stream.” This seems to me, all that any one could claim, in that direction. And if that is consistent with the rule laid down in Tyler v. Hammond, 1 Pick. 193, and in O'Linda v. Lothrop, 21 Pick. 292, and it does not profess to overrule those cases, then it could scarcely be claimed that any case, upon this subject, is very decisive of the particular construction of a contract, in another case upon the same subject matter. It is this very latitude of construction, and indefiniteness, which renders it *233difficult, if not impossible, at the present time, to determine all the questions raised in this case. ¥e think it advisable to open the case upon the first point, as possibly the others will not embarrass the case hereafter.
Judgment reversed, and case remanded.
Isham, J., having been counsel, did not sit in this case,