170 Mass. 82 | Mass. | 1898
By the deed from John Low to Henry Low in 1823, the right of flowage as far as the Plant land was annexed to the premises conveyed, and by mesne conveyances passed to the defendants, unless it had been lost, released, or abandoned. Assuming that nothing else had happened to impair the right, the non-user from the time of the washout in 1876 to the time when the defendants built their dam in 1895, did not extinguish it. Butterfield v. Reed, 160 Mass. 361. Eddy v. Chace, 140 Mass. 471. Barnes v. Lloyd, 112 Mass. 224.
But the plaintiff contends that the light was limited to the channel of the stream then existing, and was lost by the change which was made in 1848. That change was acquiesced in by all parties, and the old channel presumably was closed up, and the new channel continued to be used till the washout in 1876. We should hesitate to say that one using the new channel under such circumstances lost the right of flowage granted by deed, and thenceforward would have to depend on a right by prescription. But we do not think that the right was limited to the existing stream. We think that the words in the deed from John Low in 1823, “ with the privilege of following up the ditch to the bounds of land owned by Samuel Plant,” were not intended to limit the right of flowing to the ditch, but to fix the height to which the dam might be maintained and the land of the grantor flowed. According to this construction, the changes in the channel in 1848 and in 1876 become immaterial. There is nothing to show that the land flowed by the defendants exceeds the limits thus established, or that they have committed any wrong towards the plaintiff in rebuilding their dam, and flowing to the height originally granted. If the plaintiff lias suffered harm in consequence of what the defendants have' done, there is no remedy for it, and it must be presumed that the plaintiff built and has maintained its works with knowledge of the rights of the defendants and their predecessors in title. We discover nothing in the suit brought by the grantor of the defendants, or in its settlement, which operated as a bar to or release of the right to build a dam and to flow to the height granted.
Decree of the Superior Court affirmed.
