Cowles v. Kidder

| Superior Court of New Hampshire | Jul 15, 1852

Woods, J.

The mills of the plaintiffs were situated on Rock Island, in Sugar River, in Claremont, near the north end of the island, and were erected and used by the grantors of the plaintiffs, for a period of more than twenty years prior to the year 1836; and the mills of the defendants were erected in 1836 by their grantors, and were located about fifteen rods below the plaintiffs’ mills. It is not, however, necessary to consider any question of adverse possession arising in the case, nor to settle the questions of construction of the title deeds raised and discussed at the bar. For the purposes of the opinion, the parties may well be regarded as holding the ordinary rights of riparian proprietors. The case will not admit of a view more favorable to the defendants. In December, 1848, the stream between the mills of the plaintiffs, and the dam of the defendants, became obstructed by ice, so much so as to throw back the water upon the land and mills of the plaintiffs, and so as to prevent the operation of the mills. 11 This obstruction,” in the language of the case, “ was caused by the defendants’ dam stopping the water and ice, and throwing them back.” It is quite clear that the plaintiffs, being the owners of the land at the place of their mills, were entitled to an unobstructed flow through it, and from it. In the language of Story, J;, “ Prima fade, every proprietor upon each bank of a river is entitled to the land covered with water in front of his bank, to the middle thread of the stream, &e. In virtue of this ownership, he has a right to the use of the water flowing over it, in its natural current, without diminution or obstruction. The consequence of this principle is, that no proprietor has a right to use the water to the prejudice of another. It is wholly immaterial whether the party be a proprietor above or below, in the course of the river, the right being common to all the proprietors on the river. No one has a right to diminish the quantity which will, according to the natural current, flow to the proprietor below, or to throw it back upon a proprietor above.” Tyler v. Wilkinson, 4 Mason’s Rep. 400. In Gilman v. Tilton, 5 N. H. Rep. 232, Richardson O. J., says, “ In general, every man has a right to the use of the water flowing in a stream through his land ; and if any one divert the water from its natural channel, or throw it back, so as to deprive him of the use of it, the law will give him redress. Rut one man may acquire, by grant, a right to throw the water back upon the land of another, and long usage may be evidence of such a. grant. It is, however, well settled, that a man acquires no such right by merely being the first to make use of the water.” The language of Lord Tenterden, in Marow v. Hill, 3 Barn. and Ald. 304, is thus : “ Without the consent of the proprietors, who may be affected by his operations, no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above.” The case of Davis v. Fuller, 12 Vt. 178" court="Vt." date_filed="1840-01-15" href="https://app.midpage.ai/document/davis-v-fuller-6572297?utm_source=webapp" opinion_id="6572297">12 Vt. Rep. 178, is much like the present case. Ry the verdict of the jury, it appeared in that case that the plaintiff owned a certain lot of land, across which • flowed a river, on which he had a grist mill. The defendant owned land on the stream below, where he had erected a dam, to carry a saw mill, but had erected it no higher than was necessary for that purpose. This dam occasioned accumulations of ice, which, at times, caused the water to flow back upon the plaintiff’s land, and obstructed Ms mill, to Ms injury. In reference to those facts, Collamer, J., remarks, “ The owner of land has rights to the use of a private stream running over his land, peculiar to him as owner of the land, not derived from occupancy or appropriation, and not common to the whole commumty. It is the right to the natural flow of the stream. Of this he cannot be deprived by the mere use or appropriation by another.” In the case of Woodman v. Tufts, 9 N.H. 88" court="None" date_filed="1837-12-15" href="https://app.midpage.ai/document/woodman-v-tufts-8504187?utm_source=webapp" opinion_id="8504187">9 N. H. Rep. 88, which was case for erecting and continuing a dam across Blackwater river, and overflowing the land of the plaintiff, situated above said dam, the court decided, that if the defendant, without right, maintained a dam so high as to overflow the land of the plaintiff, the presumption of law was that the act was a damage, and no special damage need be shown in order to maintain the action. Upon the doctrine of the authorities cited, we tMnk it is clear that the plaintiffs have sustained a damage by reason of the erection and maintenance of the dam, for which they are entitled to redress, unless, upon the other grounds relied upon, the result may be changed.

The defendants rely upon an alleged license from one Wheeler, a prior owner of the plaintiffs’ mills, to the grantors of the defendants, to erect their dam, as a justification of the acts complained of in this case. But that .fact, if shown, could furmsh no answer to the plaintiffs’ action. It is well settled that a parol license, tobe exercised upon the land of another, is amere personal trust and confidence, and is not assignable, and that, although it may be binding as between the parties, it will not pass to a purchaser. It is not an easement, carrying an interest in the land; it is a mere permission to one to do an act, and does not confer an authority upon others to do such act, or exercise the same license. In Cook v. Stearns, 11 Mass. Rep. 538, it is holden that such a license is eountermandable, and that the transferring of the land by the owner to another, or even leasing it without any reservation, would, of itself, be a countermand or revocation of the license. The same doctrine is recogmzed in Harris v. Gillingham, 6 N.H. 9" court="None" date_filed="1832-02-15" href="https://app.midpage.ai/document/harris-v-gillingham-8503827?utm_source=webapp" opinion_id="8503827">6 N. H. Rep. 9. And in the recent case of Carleton v. Redington, 1 Foster’s Rep. 291, the doctrine is distinctly held, that such a license is merely a personal privilege, to he enjoyed by the person to whom it is granted, and creates no interest in land, and is not assignable, and that a conveyance by him who exercises the license will confer no right upon another to exercise the same license. The defendants in this case set up claim to no other license than such as they may have derived from their grantors ; to whom, as they allege, the former owners of the plaintiffs’ mills gave the license to erect the dam now owned by the defendants, and thereby to throw back the water upon the plaintiffs’ land and mills. It is apparent, according to the authorities, that, upon two grounds, the license cannot avail the defendants. In the first place, the conveyance of the mills to the plaintiffs, by those who gave the license, was, of itself, a revocation of the license, and terminated it; and in the second place, if such were not the effect of that conveyance, still, the license, being a personal privilege, as we have seen, is not assignable, and the conveyance of the dam and other privileges to the defendants, by those to whom the license was granted, did not confer upon them any privilege or right in the license itself, or in its exercise.

There is still another distinct ground — one which, according to the case, was assumed by the plaintiffs at the trial, upon which the license relied on by the defendants must fail to furnish an answer to the plaintiffs’ action. At the time of the defendants’ purchase, the wing dam had become decayed, and was so out of repair that it was insufficient to stop the water, and the wing dam was afterwards repaired by the defendants, although the plaintiffs forbade the repairs; and the case specially finds, that the “ wing dam so repaired was a part of the dam that caused the obstructions complained of.” Now, in the case of Carleton v. Redington, before referred to, it is distinctly settled that a license to erect a dam and flow the lands of another, terminates with the decay of the dam, and gives no right, when the dam has become decayed and ruinous, to reerect or repair it, and flow the land again. Here is superadded to the decay of the dam, an express revocation of the license to repair, if such license before existed. The act of the defendants in making the repairs was, therefore, clearly unauthorized and wrongful, and the injury to the plaintiffs was the direct and necessary consequence of it. The one was caused by the other.

A further position assumed in the defence, in answer to the right of recovery on the part of the plaintiffs, is, that the defendants have a right to the use of the water on their own lands, if they do not flow the plaintiffs’ land, and are not liable for accidental damages occasioned in times of freshet, ice times, &c. The facts reported by the judge who tried this cause, show no such case of accidental damages as is here' assumed, and no unusual state of the water, as in the case of a freshet, or an extraordinary ice time. In reference to this subject the case merely finds that the stream between the mills of the plaintiffs and the dam of the defendants “ became obstructed with ice, so much so as to stop the mills and require the channel to be cut out.” The case, thus far, clearly furnishes no evidence of any sudden and accidental accumulation of ice, by some extraordinary means, or any state of the water which is not usual and ordinary, and always to be expected in certain seasons in each and every year. Accumulations of ice in our streams, in this climate, are as certain as the annual return of winter. Whether, therefore, an accidental accumulation of ice, causing damage to the plaintiffs, would or would not give them a cause of action against the defendants, need not now be determined. Whether the defendants would or would not be answerable for a damage, the result of accident which they could not forsee and prevent, and not being the result or consequence of any wrongful act of their own, we are not called upon to decide. The case before us finds that “ the obstruction was caused by the defendants’ dam stopping the water and ice, and throwing them back.” This was, then, simply the ordinary case of the erection and maintenance of a dam, either higher or otherwise, of a character such as the defendants had no lawful right to maintain, and by means of which the ice and water were accumulated and thrown back upon the mills of the plaintiffs in a manner to occasion a damage. The idea that the damage resulted from accident is most distinctly negatived by the facts reported in the case. On the other hand, it is distinctly shown to have been caused by the dam, in its necessary and usual operation upon the water, causing the water and ice to be thrown back upon the mills. And we have already seen that the defendants, in this litigation, had no greater rights than those which belong ordinarily to riparian proprietors, and that consequently they had no right to throw back the water upon the lands and mills of the mill owners above, in a manner causing these damages. It has never yet been held, we think, that a riparian proprietor, as such, has the right, by any means, to cause the water in the stream to be thrown back, and to overflow the lands of the proprietor above, upon the stream, to his damage. And we have already seen that where the water is thus thrown back upon and made to overflow the lands of the proprietor above, the law will presume a damage, and it is not necessary in such a case to prove any special damage sustained. Woodman v. Tufts, before cited.

This ground of defence we regard as being wholly unsustained. The defendants’ counsel have called the attention of the court to the case of China v. Southwick, 3 Fairf. 238, as sustaining this last ground of defence. That action was brought to recover damages for an injury done to the plaintiff’s bridge, located at the head of a certain pond, by a head of water raised, as they alleged, by the defendant’s dam, at the outlet of the pond. The jury were instructed that if the damage was occasioned by great rains, or by the violence of the wind, the defendant was not liable, provided the jury were also satisfied that the head of water raised by the defendants’ dam was not high enough to flow the plaintiff’s bridge, or to do damage thereto. A verdict was taken for the defendant. Weston, C. J., who delivered the judgment of the court, remarked, that the jury had found that the head of water raised by the defendant’s dam was not, at the period complained of, high enough to flow the plaintiff’s bridge, or to do damage thereto. Its erection, then, was a lawful act — not in itself calculated to do any injury to the plaintiff. His loss was occasioned, as the jury have found, by great rains and by the violence of the wind. If the dam had not raised the water to a certain height, the rain or the wind superadded might not have done the damage. It may have been one of a series of causes to which the injury may be indirectly ascribed. It would be carrying the doctrine of liability to an unreasonable length, to run up a succession of causes, and hold each responsible for what followed, especially where the connection was casual and unexpected, as it was here, and where that which was attempted to be charged was in itself innocent. The law gives no encouragement to speculations of this sort. It rejects them at once. Hence the legal maxim, causa propinqua, non remota spectatur.

That ease was entirely distinguishable from the one under consideration. The erection and maintenance of the dam, in that case, were rightful acts, the same not being of a height to cause the water to flow back upon the bridge, or in any manner to injure it. Moreover, the dam was not found to have been the immediate cause of the injury, but, at most, only a cause remotely connected with the immediate cause of the injury. An extraordinary fall of rain, and the violence of the wind, forcing the water upon the bridge, were the immediate cause of its destruction. That case, then, fell within the principle which has been extensively applied, and to which reference was made in the opinion of the court, already cited.

But in the present case, as we have seen, the erection of the dam of the character of that of the defendants, being of a height and construction calculated to throw back the water of the stream upon the land and the mills of the plaintiffs above, beyond what the water would flow in its natural current, and having that effect, was, itself, an unlawful act, and would render the defendants answerable for any injury resulting from its erection and maintenance. In the case under consideration, the injury sustained by the plaintiffs is found to have been the immediate effect of the wrongful and unlawful act of the defendants; whilst in the ease referred to in Maine it was not the result of any illegal or wrongful act of the party attempted to be. charged, nor was any act of Ms, either rightful or wrongful, the immediate cause of the damage. A case differing so widely from the present in its material facts, can furnish no safe and proper rule for the decision of it. Moreover, the reasoning of the learned chief justice who delivered the opinion of the court, goes far to show that if the dam of the defendant in that case had been the immediate cause of the destruction of the bridge by reason of its erection to an unwarrantable height, amounting to a wrong on the part of the defendant, the defendant would have been answerable for the damage occasioned thereby. There must, therefore, be

Judgment on the verdict.