10 Conn. 213 | Conn. | 1834
It was supposed, by the judge who presided at the trial of this cause, that the same principles which decided the case of King & al. v. Tiffany & al. 9 Conn. Rep. 162. were applicable to, and decisive of, this case. There, the plaintiffs, as owners of the upper mill, claimed, that they had a right to have the waters flow over their land and from their mill, as they had been accustomed to flow; and that the defendants, by their dam, had interrupted that natural and accustomed flow. The defendants said, that what they had done would not have injured the plaintiffs, if they had continued to use the water as they had formerly used it; but by lowering their hammer-wheel, the injury was brought upon themselves, and would not have happened but for that act. This court, however, held, that the plaintiffs had a right to have their water flow off as it had been accustomed to flow ; and that, if the plaintiffs suffered from such interruption of the defendants, they might recover, although they had not used the water precisely in the same manner, for fifteen years.
In this case, the relative situation of the parties, is reversed; but the principle is the same. The proprietors of the banks and mills below, claim, not that the water is set back upon them, but that it is kept back from them, and not suffered to
The obstruction of the natural course of a stream, is always done at the risk of being answerable in damages to him who sustains a loss thereby. The inquiries, then, are, has the defendant obstructed the natural flow of the water ; and have the plaintiffs sustained an injury thereby 1 The defendant, indeed, may protect himself in the obstruction, by an enjoyment for a certain time; but without that, he can have no defence. Such were the principles recently adopted by the court; and they still seem to me decisive of this case. The only distinction that exists between that case and this, is, that by the report of that case, it does not appear, that the plaintiffs altered the flowing of the water at all, as they have done in this. It was apparent, however, that by lowering their hammer-wheel, they changed their use of the water: they passed it in a different manner from what they had been accustomed to do. Of course, their claim wras not founded upon their enjoyment of it, in any particular manner. The argument for the defendants was there, as well as here, that the plaintiffs had a right to enjoy the water as they had done, for a period of thirty years ; and if the defendants could use the water profitably to themselves, without injury to the plaintiffs’ wheel, as it then stood, they had the right so to do. That is the precise argument here. There, too, the plaintiffs claimed as here, that they had a right to have the water flow as it__ had been used to flow upon their own site. The court also . held here, as they did there, that the plaintiffs, by the use they hade made of the water, lost none of their natural rights.
It seems to me, that the argument for the defendant, confounds the natural rights of the riparian proprietor with the acquired right of the person who has enjoyed the water in a particular manner for a certain time — fifteen years in this state., twenty in England. The latter acquires a right, by continued enjoyment, the extent of which is measured by the extent of the enjoyment. But the riparian proprietor has an
In this case, the plaintiffs have a right to have the water come to them in its natural and accustomed course, not by their artificial channel or into their artificial reservoir, but to flow within its banks, through their lands, as it was wont to flow. This right they claim, not as mill-owners, but as riparian proprietors. The defendant objects, that the plaintiffs have not used the water, in the same manner as they now use it. The answer to that is, that the plaintiffs’ right to the water does not depend upon their use of it, or their prior occupancy, but upon their natural right to have it flow as it has been accustomed to flow. Their damages may depend upon their application of it: not, however, upon their general past application, but upon their application when it was interrupted. On the contrary, as the defendants claim to interrupt the natural flow of the water, they must shew a use for fifteen years or more, to justify them in their claim. Thus in Bealy v. Shaw
Unless, then, there be a difference between the diverting of water and the obstructing of it, I can see no difference between those cases and Ais.
What degree of- obstruction, where there is no malice, shall be the foundation of an action, must always be a question for the sound discretion of the triers. That question was explicitly submitted to the jury ; and they have found the injury to the plaintiffs. It seems, therefore, to me, that there is no ground for a new trial.
New trial not to be granted.