5 Vt. 371 | Vt. | 1833
The opinion of the Court was pronounced by
The record shows what evidence the plaintiffs introduced to support the issue on their part; also the evidence which the defendant introduced. If the jury found the Facts which the defendant’s evidence tended to prove, what is the operation of law upon these facts ? Before I attempt to answer this question, I will state the law as -it is generally understood in England, and in the United States, in the case of Barber vs. Shaw et al. 6 East. 208, the Court say, an adverse right may exist founded on occupation of another. And though the stream be either -diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades,- yet if the occupar tion of the party- so taking, or using it, has existed for so long time as may raise the presumption of a grant, the other party whose land is below, must take the stream subject to.such adverse light. I take it, that twenty years exclusive enjoyment of the water in any particular manner-, affords a conclusive presumption of right in the party so enjoying it, derived from grant, or act of Parliament.
Swift, Ch. J., says, “ A special right, different from the general one, may be acquired by an adjoining proprietor, by grant, or by possession for such length of time as will furnish presumptive evidence of a grant. In England, it has been decided, that twenty years' exclusive enjoyment of water in a particular manner, affords a conclusive presumption of a right in the party enjoying it, derived from some individual having the power to make it, or from the Legislature ; and in this State, fifteen years exclusive enjoyment will furnish the same evidence. Such exclusive right, however, must be measured and limited by the extent'of its enjoyment, and the occupier can no more enlarge it, than he can assume a new right.” — Ingraham, vs. Hutchinson, 2 Con. R. 584.
Mr. A-ngell, in his valuable Treatise on the Common
Chancellor Kent (3 Com. 356) says, “ The general and established doctrine is, that an exclusive enjoyment of water or of light, or of any other easement in any particular way for twenty years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person, which might have been, but was not asserted. The right is confined to the extent, and the mode of enjoyment during the twenty years. All that the law requires is, that the mode or manner of using the water should not be materially varied to the prejudice of other owners; and the proprietor is not bound to use the water in the same precise manner, or to apply it to the same mill; for such a construction of the rule would stop all improvements in machinery. He is only not to vary the enjoyment to the prejudice of his neighbor.”
But the defendant was subject to the maxim, Sic viere tuo ut aliemm non ladas. To comply with this requisition of the common law, it was the duty of the defendant to have used ordinary caro and diligence in making repairs to his dam ; or in drawing off the water from’his pond, to prevent injuries to the plaintiffs’ furnace. If the defendant did not use this care and diligence, he was guilty of negligence, and liable for consequential damages 3 but he was not liable for inevitable accidents.
After the defendant’s land was attached in this suit, he deeded a part of the same land, with the attachment thereon, to Pratt Curtis, whose interest it was to remove this in-cumbrance from the land. With this interest existing,
Inasmuch as the County Court admitted said witness to testify on the part of the defendant, and instructed the jury contrary to the aforesaid principles of law, as to the defendant’s duties and liabilities, the judgement of the County Court is set aside, and a new trial granted.