35 Conn. 156 | Conn. | 1868
This case depends upon the construction to be given to the 390th section of title 1st, Revised Statutes, p. 90, which is a part of the enactment known as the Flowage Act, and is as follows: “ No such dam shall be erected to the injury of any mill, lawfully existing either above or below it, on the same stream, or to the injury of any mill-site on the same stream on which a mill or mill-dam shall have been lawfully
It was suggested in the argument that the statute would apply in a case where a party had acquired the right to flow another’s land by prescription, and had lost it by non-user. But it is easy to see, if the statutory right means the right incident to ownership, it is not lost in the case supposed. The right attaches to the site itself, and rests in the person who may be the owner for the time being. Whether it is owned by one or many persons, jointly or severally, the right to maintain a mill thereon still exists. The several owners may each convey the part he owns to a third person, and then manifestly the right incident to ownership would be revived, if it could be regarded as lost or defeated by a severance of the
What interpretation then should be given to the statute, for it is to be presumed that there are cases to which its provisions can be applied.
The old law on the subject excluded all mill-sites from the operation of the statute, whether a mill or mill-dam had been erected and used thereon or not. That exclusion was deemed to be too extensive in its operation and therefore the present statute was enacted. The right to maintain a mill, mentioned in this statute, must differ essentially from that incident to ownership.
The right incident to ownership does not depend upon whether a mill or mill-dam has ever existed upon a mill-site, in order to confer upon the owner the privilege of maintaining a mill thereon, but this statutory right does.
This statute unmistakably shows a desire and intention on the part of the legislature, that all the water-power of the state shall be improved by somebody for milling purposes. A preference is shown for the owner, and if it appears in a given case that a mill or mill-dam has been erected and used upon a mill-site, it shall be deemed to be sufficient assurance that it will be improved again by the owner for milling purposes, and the mill-site shall be exempt from the operation of the statute, unless it appears that, by long-continued non-user, all intention so to improve it at any time has been abandoned, when all right on the part of the owner so to improve it, in preference to other proprietors on the stream, shall be deemed
The Supreme Court of Massachusetts, upon a statute which provided that any person might erect and maintain a watermill and a dam to raise water for working it, although it might flow back upon land not belonging to the mill-owner, he being liable for the payment of damages in the manner provided by the statute, held, that the right conferred by the statute might be lost by abandonment or by non-user for an unreasonable length of time. Chief Justice Shaw, in giving the opinion of the court, in the case of French v. Braintree Manufacturing Co., 23 Pick. 216, says, “From this view it is apparent that this statute privilege which has once attached to a mill-site by the actual erection of a mill and dam, may be lost in one of two modes; first by a voluntary abandonment ; and secondly by non-user for an unreasonable length
The construction we have given to the statute, applied to the present case, leaves no room for doubt that the report of the committee should be accepted, and judgment rendered for the petitioner, and so we advise the Superior Court.
In this opinion the other judges concurred, except Hinman, C. J., who dissented.