Costello v. Harris

162 Pa. 397 | Pa. | 1894

Opinion by

Mr. Justice Williams,

We gather from the evidence in this case the following facts: Many years ago Thomas P. Cope was the owner of a considerable body of land in Susquehanna county. He caused it to be surveyed into lots for farms and offered these lots for sale to settlers. Some sixty or seventy years ago one of these lots became the property of Milton Harris who built, a sawmill and a gristmill upon a stream which ran through it. To secure a sufficient water-power he went up the stream and upon another lot belonging to Cope built a dam that flowed about twenty-seven acres of Cope’s land. It is evident from all the circumstances that this was done with the knowledge and consent of Cope in order to secure for settlers upon his lands the advantages which the existence of these mills would afford them. The dam has been broken from time to time, and repaired or rebuilt by Harris on the same site or one near by, and the same twenty-seven acres have been flowed for the benefit of his mills ever since they were erected. Upon these facts we have no doubt that Harris has acquired a right to maintain a dam and to flow this land by prescription. If he did not enter originally under an express grant the law will now presume one, and he cannot be disturbed at this time in the enjoyment of his prescriptive right to maintain the dam and the pond for the benefit of his mills, by the successors in title of Thomas P. Cope. Gebman v. Erdman, 105 Pa. 371; McGeorge v. Hoffman, 133 Pa. 381.

But this action is ejectment. The land described in the praecipe as amended is the land covered by the defendant’s dam and by water just above the dam. The plaintiff put in evidence a connected paper title to a lot of land of which the land in controversy is part, by which it appeared that the title once held by Thomas P. Cope is now vested in the plaintiff. The defendant set up as a defence, not his easement on and over the land, but title by an actual open adverse possession of the land itself. There was no evidence as to the character of the original entry by Harris, but the circumstances indicate that it was permissive. The Copes, father and son, seem to have known of, and suffered without objection or remonstrance, the use of their land by Harris, to furnish him with waterpower for his mills for more than half a century. At the same time they-used or had within their general inclosures-the land down to the water’s edge and to the -dam. The right to build and maintain his dam and hold the water in the pond was yielded to Harris by the Copes; but beyond what was necessary to these purposes the evidence shows no acts of ownership, no inclosure, no exclusive possession by Harris. As evidence of the existence and exercise of a prescriptive right to maintain a dam, and flow' the land, the acts of Harris were abundant, appropriate, and clearly proved ; but did they show, or tend to show, an adverse possession of the land? Were they not referable to the use of the water for the mills below? Was there any such act of hostility to the title of Cope as put him on notice that Harris claimed not onty the water-power and the right to maintain it, but the land under the water? We think that the learned judge of the court below erred in directing the attention of the jury to the title to the land when it should have been directed to the easement in and upon the land. The plaintiff may have a title to the land covered by the dam and the water held by it, but it may nevertheless be bound by an easement in favor of the defendant which nothing short of an actual abandonment by him can deprive him of. He established the existence of his right to maintain the dam and the pond by the clearest possible proof of user, with 'the knowledge and consent of the owners of the land, for more than sixty years'; and the plaintiff cannot abridge the exercise of this right, or interfere with the maintainance of a suitable dam to hold the water, because he holds Cope’s title to the land. He took the title cum onere. The easement had been fastened upon it many years before he became the purchaser, and it was visible on the ground. He cannot dislodge it. In the absence however of such an actual, notorious and hostile possession of the land by’ the defendant as is necessary to give title under the statute, the plaintiff might recover on his title subject to the exercise by the defendant of his prescriptive right to maintain a suitable dam thereon, and repair and rebuild the same when necessary, to the height at which the water has heretofore been raised for the use of his mills. It is not upon any one assign ment of error that we reverse this judgment, but because of the theory on which the charge and- the answers to the points were constructed.

The building, rebuilding and repair of the successive dams were not detached and unrelated entries on the land of another on which a title by adverse possession was to stand, but they were the ■ rightful and necessary acts of one seeking to maintain and enjoy the prescriptive right to flow the land of another for the benefit of his own mills. These acts were performed down to and including the building of the present dam, with the knowledge and apparent consent of the owner, and when the plaintiff bought the land the dam was where it now is. There has been no change in the easement or its exercise since the plaintiff’s title was acquired, and no trespass therefore upon him. He has nothing to complain of so far as the defendant is concerned except that he claims title to the land, instead of a prescriptive easement in and upon the land in controversy.

The judgment is reversed and a venire facias de novo awarded. The verdict should have been, so far as the evidence before us indicates, a verdict for the plaintiff subject to the right of the defendant to exercise his prescriptive right thereon to maintain a dam and flow the land as it has been heretofore done, for the use of his mills. If the defendant had disclaimed title and asserted his easement at the outset, we see no reason why he should not have recovered his costs in this case.