40 Mass. 216 | Mass. | 1839
drew up the opinion of the Court. The question arising in the present case, cannot receive much elucidation from the doctrines of the common law, on the subject of easements, prescriptions and implied grants, which may be presumed from long continued and adverse use and enjoyment; nor can much aid be afforded to the discussion, by the civil law doctrine of servitudes, except as they tend to show what is reasonable and equitable in like cases. The case does not test upon the principles of grant, express or implied, to any considerable extent, but upon the construction and operation of the statutes of the Commonwealth, on the subject of mills and mill-dams.
It becomes therefore necessary to consider precisely what the question is, and then to inquire into the principles on which it must be determined.
The rights of these parties in this respect, must be regulated by the Revised Statutes, which went into operation in May
The statute provides, that any person may erect and maintain a water-mill and a dam to raise water for working it, although it may flow back upon lands not belonging to such mill-owner, he being liable for the payment of damages, in the manner specially provided by the statute. This is the nature of the right intended to be secured to the mill-owner. But it is manifest, that the object of the provision, as well as the literal enactment, was, that the mill should be maintained m a working condition. It would follow, therefore, as a necessary restriction upon this right, that when a mill is once established and put in operation under this statute, it cannot be competent for the owner on the stream next below, to build a dam on his land and raise a head of water, in such manner as to flow the mill already built above; and although there is no limitation in terms, such a construction of the statute would make it contradictory to itself, by defeating the very right which it first grants. Whether it is competent for a mill-owner under the act to flow another’s lands, having dwellinghouses or other buildings upon them, I believe has never been distinctly decided; but whether it be so or not, it cannot be so construed as to authorize the overflowing of other mills, protected by the statute.
If therefore a mill-owner has thus erected his dam and mill, the statute authorizes him to maintain it; and therefore if an upper proprietor places a dam on that part of his land, which is already flowed by a dam below, he does it in his own wrong, and can maintain no action against the proprietor of the latter for so doing. But after a mill has been erected and this statute right has attached to it, it may be impossible always and at all times to keep the water flowed to the requisite height, and to keep the mill in constant operation ; the dam maybe carried away by floods, the mill destroyed by fire, or both become dilapidated by age and wear. In all these cases, it may be necessary to take them down and rebuild them. But it would be wholly inconsistent with the nature of the right granted and with the objects and purposes of such grant, to hold, that because the
From this view of the subject, it is clear, we think, that in addition to the natural common law right, which every owner of land on both sides of a stream of water has, to make a reasonable use of the water as it flows over his lands, for mill purposes, such a proprietor, who has actually erected a dam and a mill, has two other rights by force of the statute.
The first is, to raise and keep up the water by the dam on his own land, although the land of the owner above may be thereby flowed. The second is, to hold his own mill exempt from any liability to be flowed by the owner of land below, by any dam, raised after such mill and dam have been erected. But these rights, being granted for the better use of the waterpower, upon considerations of public policy and the general good, are given with a view to keeping up and maintaining mills for use, which is deemed for the public good; and the right must be considered as incident and subservient to this purpose, as attached to mills for use, and not as attached to the land merely ; and therefore it is not perpetual.
When and under what circumstances shall it cease ? It is very clear, that although the legislature manifestly contemplated, that the public were to derive a benefit from the use of mills, yet it was through the proprietors’ own interest to maintain them ; and no corresponding duty was imposed on the mill-owner to keep up his mills. He may therefore voluntarily abandon them and appropriate his land to some other use, if he shall see fit so to do.
Further, it was manifestly the original policy of the legislature in these statutes, that streams capable of being applied to mill purposes, should be so appropriated by the owners of the lands, through which they run, and that the owners should be encouraged by special privileges, and that they ought not to
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 a non-user for an unreasonable length of time.
The Court are of opinion, that as this statute privilege was given to a proprietor of a mill site, in the expectation and upon consideration of his keeping up mills, useful and beneficial to the public, if the owner of the land, to which the privilege is attached, will voluntarily abandon it, by an express declaration, that it is no longer his intention to keep up his mills, accompanied with corresponding acts, such as removing his dam and mills, giving notice to those whose lands he has before flowed and to whom he has paid damages, that it is no longer his intention to flow them, and the like, this would be an abandonment and extinguishment of the privilege.
There may be difficulties in the application of the principle of abandonment, treated as a positive and operative act and contradistinguished from non user or mere negative conduct. One question may be, what species of interest shall enable an owner or occupant to abandon. In case of a person, who hs owner in fee of the soil, on both sides, and of the mill to which the privilege is attached, of full age and under no disability, there can be no doubt. But where there is a tenant foi life or years, with remainder or reversion in another, where the estate is held by tenants in common or joint tenants, or persons un der disability, questions may arise. It can only be said in general terms, that as the privilege in question, has been attached to the estate as ati incident, and will pass with it, until severed, such abandonment can only be made by those, who have a disposing power over the estate.
Upon the other point the Court are of opinion, that where a dam and mill have been erected and put in operation, so that the statute privilege has attached to it, an entire and continued disuse of the dam for mill purposes, for the term of twenty years, is strong prima, facie evidence of ceasing to use the privilege for an unreasonable time, by which, the privilege is lost to the owner, and unless rebutted by clear, strong and satisfactory proof of explanatory circumstances, must be taken .to be conclusive. If the rebuilding of the dam or mill have .been commenced, but destroyed by fire or flood or other cas.ualty, if definite arrangements have been made to rebuild, in good faith, but are defeated by causes over which the parties had no control, these might well be deemed proof of a proper character tending to rebut such presumption of unreasonable delay. But the presumption should be regarded as the settled rule, and not to be changed without full proof of circumstances, showing a reasonable and satisfactory excuse for the delay.
So, on the contrary, if the mill is wholly removed, and the head of water kept up by the dam, before used as a mill-dam, for wholly distinct purposes, as for the irrigation of land, the privilege attached to the mill site, by statute, would cease, after twenty years of such non-user for mill purposes.
In applying these principles, the Court aré all of opinion, upon the facts shown by the report, that the defendants could not justify the rebuilding of the dam complained of, so as to flow up and throw back water upon the plaintiff’s dam. The mill and mill-dam on that site, had been wholly disused, for a period long exceeding twenty years, by which the' parties above and below, were remitted to their original and common law rights ; and as the plaintiff had commenced the erection of his dam and mill on his own land, the defendants had no right to flow back the water upon and thus destroy or impair his mill privilegé. The evidence upon the question of fact is quite decisive. After the destruction of Hobart Clark’s mill, more .than twenty years elapsed, before any thing was done. The placing of the trench and lathe in 1809, was not a renewal of the privilege, because no dam was placed to raise the head of water, which is the peculiar object of the statute protection. Then the division of the estate, and the assignment of the land on the opposite sides of the stream to different heirs, is a very strong circumstance. It was urged in argument, that upon this division, no assignment or appropriation was made of the mill privilege. But \ is to be remembered that the privilege or