Heath v. Williams, 25 Me. 209

Heath v. Williams

25 Me. 209 | Me. | 1845

The opinion of the Court was drawn up by

Sheplet J.

This is an action of trespass quare clausum, brought to recover damages for an injury done to the flume *215leading water to the plaintiff’s tannery. The defendant admitted, that he removed some planks from it to let the water run off, and contended, that he had a legal right to do so; first, because the flume was upon his land; and secondly, because the plaintiff’s mill dam caused the water to flow back upon the wheel of his clothing mill, situated on a branch of the same stream.

The action was referred to the Judge of the Middle District Court, who made a report against the plaintiff’s right to maintain the action. He also presented with his report certain deeds of conveyance, facts, and questions of law, for the consideration of this Court, and an alternative report in favor of the plaintiff, if the Court should be of opinion, that he was entitled to recover.

The report states, that the plaintiff’s dam caused the water to flow back so much as to seriously impede the operation of the defendant’s mill; and that he, after requesting the plaintiff to let the water flow off, so that it would not injure him, removed the planks from the flume, doing no greater damage, than was necessary to remove the water, which was injurious to his mill. The plaintiff owned a lot of land, and contended, that it extended southerly so far as to embrace the land, on which his flume had been built. The defendant claimed to be the owner of a lot of land adjoining it on the southerly side, and contended that his land extended northerly so far as to include the land under the flume. The referee, without a detail of the testimony introduced before him to establish their respective claims, states, that “ the proofs were so balanced, that the referee had no other means of deciding, which of the parties owned the disputed territory, limn by resorting to the inquiry, on whom rested the onus probandi. That he supposed it to be on the defendant, and the result was, that he decided, that the defendant had not proved his title.” The counsel for the defendant insists, that this conclusion was incorrect. The plaintiff appears to have been in possession of the land, on which the flume was erected, for several years. That possession was sufficient to enable him to maintain his *216action against any one, who could not show a superior title, or some legal right to enter upon it. The defendant, failing to show a superior title, could not justify his acts on the ground, that the flume was upon his land.

The report further states, that “ defendant has a clothing mill on the stream above plaintiff’s dam. It is fed by a dam, which, with its predecessor on the same site, has stood for more than twenty years prior to the alleged trespass.” That the plaintiff’s dam and mill were built between the years 1829 and 1833. That the defendant next contended “ that as his mill and dam were the oldest, he had a right of priority to the water, and might lawfully break the flume, as he did. Referee was of this opinion, unless the legal principle was controlled or rendered inapplicable by other considerations belonging to the case.”

The cases cited in the arguments of counsel decide, that priority of appropriation of the water of a stream confers no exclusive right to the use of it. A riparian proprietor, who owns both banks of a stream, has a right to have the water flow in its natural current without any obstruction injurious to him over the whole extent of his land, unless his rights have been impaired by grant, license, or an adverse appropriation for more than twenty years. The defendant appears to be the undisputed owner of the land on both banks of the stream below his mill nearly or quite to the plaintiff’s dam, unless that title shall prove to be defective in the manner hereafter stated. While it is contended, that the plaintiff’s C! dam and mill were erected with such knowledge and concurrence of the defendant’s grantors as amounted to a license,” it is not contended, that he has acquired any right by grant or by an appropriation for more than twenty years to cause the water to be flowed back upon the defendant’s mill. It is not necessary to decide, whether the defendant had acquired a right to have the water of the stream so used as to prevent its being thereby flowed back upon his mill by an appropriation of it without such an occurrence for more than twenty years, as decided in the case of Saunders v. Newman, 1 B. &. Ald. *217258. Although he could not derive any right from the statute, c. 126, § 2, or from priority of appropriation, yet the common law would afford him sufficient protection against the flow of water back upon his own land to the injury of his mill by the acts of another. Failing to obtain relief from the continuance of such an injury without it, he might lawfully enter upon the land of the plaintiff, and remove, so far as necessary, the obstruction, which occasioned it; unless his title to the waterpower, which he claimed, should prove to be defectivo, or his full right of use should prove to be impaired.

The plaintiff attempts to set up a title in himself, or in another, to the lot of land occupied by the defendant. He then claims to be the owner of the darn, from which the defendant’s mill derives its supply of water; and therefore infers, that he had a right to deprive him of the use of it.

The facts in relation to the title aud the alleged license appear to be these. Amos Potter and Robert Ashford, on July 6, 1829, conveyed by a deed, recorded on March 3, 3 831, the southerly lot now occupied by the defendant, to William Small, who on the same day reconveyed it to them in mortgage to secure the purchase money; and on February 22, 1831, conveyed all his interest in it to Calvin Spaulding. Amos Potter conveyed on May 16, 1831, the northerly lot now owned by the plaintiff, to Calvin Spaulding, who entered into possession of both lots and occupied them by his tenants until the year 1835, when Small, who had continued to occupy under Spaulding, executed a release, written on the back of the mortgage to Potter and Ashford, of his right to redeem the southerly lot; and Potter, without any other payment of them, delivered to him the notes given for the purchase money and secured by the mortgage, and entered into possession of the lot. The plaintiff’s dam and mill were erected, while Spaulding was thus in possession of both lots, Potter “ being present and making no objection.” After the mill was built, and prior to the year 1837, Potter hired it and occupied it under Spaulding, who had conveyed both lots to John Otis, on December 26, 1835, by deed recorded on October 11, 1842. *218John Otis, on June 6, 1842, conveyed the northerly, but not the southerly lot, to the plaintiff, whose assertion of title to the southerly lot appears to have been made without any foundation. Until Otis, or some person deriving title from him, shall claim that lot on the ground, that the proceedings between Potter and Small amounted to a payment of the mortgage debt, the defendant must be considered as legally entitled to hold it as assignee of the mortgagee. But as he failed before the referee to establish his title to the northerly bound and line, to which he claimed, he must be considered as failing to establish that line in such a manner as to include within the bounds of his lot the dam, from which his mill derives its supply of water. For the present purpose, that dam may be considered as within the bounds of the plaintiff’s lot. The conveyance from Potter and Ashford to Small, from whom the defendant derives his title, contained this clause; “ and also the privilege of flowing land and erecting dams on any of the adjoining lands, as much as is necessary for the benefit of machines and mills on the premises.” This was quite sufficient to entitle Small and those claiming the same title and rights from him, as the defendant does, to maintain that dam to flow the water for the use of the mill. Spaulding, by his subsequent conveyance from Potter, must take his title subject to that right. The plaintiff, deriving his title from Spaulding, can have no superior right, and cannot resist the right of the defendant to obtain a supply of water for the use of his mill.

With respect to the asserted license, it is only necessary to remark, that a mortgagee, while he permits the mortgagor to retain the possession, can have no just cause to interfere or to complain, if the mortgagor be found making improvements upon the estate. Iiis rights cannot be impaired by his neglect to do so. While Potter continued to occupy the plaintiff’s mill as the tenant of Spaulding, he could not be permitted to deny the title of Spaulding. After that relation ceased to exist, his rights would not • thereby be impaired. The rights of Potter to the water connected with the southerly lot, do not appear to have been impaired by any of these transactions, *219and those rights have been conveyed to the defendant. The report of the referee in his favor is accepted.