Hickox v. Parmelee

| Conn. | Jun 15, 1851

Storrs, J.

The right of controuling the water of the stream in question, for the benefit of the plaintiffs, in derogation of the rights of the defendants, whose works are situated between the mills of the plaintiffs and the outlet of the pond from which the stream issued, which the plaintiffs set up in the second count of the declaration, under which alone the rulings were made of which the defendants complain, and which it was necessary for the plaintiffs to prove, in order to recover under that count, was one of a special, or as it is termed artificial character, and to which, therefore, the plaintiffs would not be entitled ex jure naturœ, as incident to the ownership of their mills.

Both of the parties claim title to their respective mills, although not immediately, under W. & S. Cogswell, who built the mills of the plaintiffs, while they were the owners of all the land at and below the outlet of the pond down to the lower boundary of the plaintiffs’ land, and therefore including the land of both the parties on which their mills stand; and in considering the objection of the defendants to the competency of the evidence objected to by them, and received by the court below, the intermediate conveyances, between the Cogswells and the parties in this suit, may be disregarded, and the case viewed as if the parties derived their title immediately from the Cogswells; since nothing has occurred, so far as this point is concerned, to vary the rights of either of the parties from what they would have been, if they had derived their title immediately from the Cogswells, or, in other words, as they existed when the latter parted with the property to those under whom the parties less remotely claim.

While the Cogswells owned all the land between the outlet of the pond and the adjoining land of the mill-owners below, the acts of those mill-owners, in conjunction with the Cogswells, and at their joint expence, in erecting a dam, flume and gate at said outlet, and deepening and widening the channel there and below, for the purpose of controuling the water at said outlet for the first use of their mills, and the continued use of those works for that purpose, by them, for the benefit of their mills, for the period of fifteen years, under a claim of right so to do, unexplained as it is, in the present case, by any circumstances which deprive these acts of an adverse character, constituted a conclusive presumption of a grant from the Cogswells to the mill-owners below of a permanent right, in conjunction with the Cogswells, to construct those works and use them for that purpose; the effect of which was, to abridge the right of the Cogswells to the use of the water of the stream between the outlet of the pond and their mills, in such a manner that they could not interfere with the right so acquired, by such presumed grant, and therefore, to diminish, to that extent, their previous natural rights, as riparian proprietors on the stream. The effect of such grant, however, was merely an abridgment of the rights of the Cogswells to that extent; and, excepting so far as it had that effect, it left their rights in the stream the same as they had previously existed. It did not confer upon them, nor did they acquire thereby, on the ground of contract or prescription, any new or additional right to construct or use the works at the outlet or the pond, for the purpose of controuling the water of the stream, for the benefit of their mills, to the exclusion of, or in preference to, those who might subsequently become, under them, intermediate owners on the stream; because the Cogswells being the proprietors, not only of the land on which their mills stood, but also of that between them and the outlet of the pond, their unity of ownership would, on a well established and familiar principle, prevent the acquisition by them of any such new or additional right. Any such acquisition must have been from themselves, which is legally impossible. They could not thus add to the plentitude of their ownership. Therefore, the right claimed by the plaintiffs, under, or by virtue of their conveyance from the Cogswells, to controul the water of the stream between the outlet and their mills, for the benefit of those mills, to the exclusion of the right, claimed by the defendants, to the use of the water, for the benefit of their furnace, which is situated between said outlet and mills,cannot be sustained, upon the ground that the Cogswells, or the plaintiffs claiming under them, have acquired any such right to controul the water, by an agreement between the latter and the mill-owners below, or by an adverse enjoyment thereof, which would amount to, or be evidence of, a grant for that purpose.

But there is another ground, on which, by the conveyance from the Cogswells to the plaintiffs, of the land and mills of the latter, the right of controuling the water above those mills might pass to the plaintiffs and become vested in them, and prevail over any conflicting rights claimed by the defendants to the use of the water for their furnace, which was erected by them subsequent to the erection of the mills of the plaintiffs. If, while the plaintiffs’ mills were owned by the Cogswells, the latter practically attached and appropriated to them the privilege of controuling and regulating the water above, which the plaintiffs now claim a right to exercise, by constructing themselves, or in conjunction with the mill-owners below, the works at the outlet of the pond, and deepening and widening the channel there, for that purpose, and thenceforth continued to exercise that privilege, by means of such works, in connexion with, and for the use and benefit of those mills, down to the time, when they conveyed to the plaintiffs, we are of opinion, that such privilege became, and is to be considered, parcel of the estate of which those mills formed a part, and passed as such from the Cogswells to the plaintiffs, by that conveyance; and the effect of the conveyance to the defendants of the other portion of the property, on which their furnace stands, was only to convey to them such property, as it was then modified by the privilege so attached to the mills of the plaintiffs. If, after that privilege was so attached to those mills, it had been withdrawn or severed from them, by the Cogswells, while they owned the property above, as they had a right to do, and their mills had thus been deprived of it, as it would have ceased to be attached to them, or to subsist in connexion with them, it would no longer have been parcel of the estate, and, therefore, would not have passed, by the conveyance of it. These principles are fully established, by the cases of Nicholas v. Chamberlain, Cro. Jac. 121. and Carey v. Daniels, 8 Metc. R. 466. which bear a very close analogy to the present, and are distinctly recognized and approved, in Hazard v. Robinson, 3 Mason's R. 272. and the cases therein referred to.

The testimony of Tomlinson, which was offered by the plaintiffs, tended directly to prove the right set up in the declaration, by shewing the existence of such a privilege connected with their mills, and was therefore properly admitted.

2. The defendants claim, that the conduct of Bennet, (who purchased from the Cogswells, and under whom both parties claim title,) in remaining silent and interposing no objections, while the Waramaug Iron Company, (who purchased of Bennet previously to the plaintiffs, and under whom the defendants immediately claim title,) were constructing their works, of which the plaintiffs now complain, although he was observant of what said company were then doing, estopped Bennet, and therefore precludes the plaintiffs, from alledging that said company encroached, by means of said works, on the rights now claimed by the plaintiffs; or, at least, amounted to a license from Bennet to said company, irrevocable by him, and consequently by the plaintiffs, to construct those works. We think, that the defendants have no reason to complain of the charge below on this point, but that it was rather over favourable to the defendants than otherwise. We are not aware of any principle of law, by which Bennet was obliged to interfere with the acts of his grantee, on peril of losing his rights. His conduct would amount only to evidence on the question whether such acts were done with his license; and there is no complaint that the defendants had not the advantage of it, for that purpose, before the jury. Johnson v. Lewis, 13 Conn. R. 307.

3. We perceive no error in the charge below, on the construction or effect of the clause in the deed from Bennet to the Waramaug Iron Company, which was claimed to be a reservation for the benefit of the former. If that clause is to be deemed a technical reservation, it would enure to the benefit of Bennet, as the remaining owner of the land on the stream unconveyed by that deed, and of his grantees of that land, which, in this case, were the plaintiffs. It would be attached to the estate retained by Bennet, and not to him personally. But on the construction of it by the defendants, it gave to Bennet the right to controul the water of the stream after he had divested himself of the property to which it was appurtenant. This view of it is unsupported, by reason or authority. We concur, however, in the opinion expressed by the judge on the trial, that that clause was not intended as a reservation; but that it was introduced into the deed only for the purpose of protecting Bennet, the grantor, on his covenant against incumbrances, from any liability on account of the existence of the right or privilege claimed by the plaintiffs, on the trial, as before mentioned, to be attached to their mills, by virtue of the conveyance to them by Bennet.

4. On the remaining question, whether the verdict should be set aside, on account of the misconduct of the juror, we have come to the conclusion, although not without some hesitation, that it ought not to be disturbed. That hesitation has arisen from the difficulty, generally, of ascertaining that the mind of a juror was not influenced, by the communication of another person, although the juror himself is sensible of no such effect, and is even so confident that there was none, that he does not hesitate to deny it, in his testimony. But in this case, there was nothing in the character of the communication itself, which would have a necessary, or even probable, tendency to bias the opinion of the juror, although it is possible that it might have that effect. And the communication to him was of that peculiar kind, that we are induced to think that he could judge correctly on the point whether he was so biassed; and that full credit ought, therefore, to be given to him, when he testifies, that he was not. What took place between him and Tomlinson was highly reprehensible, and a violation of duty in both; but it appears to have been the result of thoughtlessness, and not any improper motive. If the latter were one of the plaintiffs in the action, or their agent, we should not hesitate to set aside the verdict, whatever may have been the character of his communication. Such however was not the case. He had no interest in the event of the suit, although he was a mill-owner below the plaintiffs, and therefore, at most, had only what is termed an interest in the question. 13 Conn. R. 445.

A new trial, therefore, is not advised.

In this opinion the other Judges concurred.

New trial not granted.

Judgment not arrested.