30 N.J. Eq. 180 | New York Court of Chancery | 1878
This is an injunction bill. The complainants seek to have the defendants perpetually restrained from interfering with a dam on the Rockaway river, at Dover, in the county of Morris. The Morris canal crosses the Rockaway river, at Dover, and is so built that the river, at that point, forms part of the canal. A short distance below the point where the canal intersects the river, the canal company, in constructing the canal, built a dam across the river which serves as one bank of the canal. It was built for the purpose of damming back the water of the river so as to get sufficient water to float boats through that part of the canal constructed within the river. At the time this suit was brought it had been standing more than forty years. It consists of stone-work at the bottom and heavy timbers on the top. The defendants do not deny the complainants’ right to maintain that part of it which is permanent. But the complainants claim the right to increase the height of the permanent structure by placing on it, between upright iron bolts driven in the timbers, movable boards (usually called flash-boards) eight inches wide, extending from one end of the dam to the other, and to keep them there each year during the time the canal is open for navigation. This claim is the subject of the contention. The defendants deny the right set up by the complainants, and provoked this suit by repeatedly removing the boards from the dam in July, 1875. The defendant Henry McFarlan is the owner of a rolling-mill built on the west bank of the river, over seven hundred feet above the dam. The mill is run by water-power. The water from his wheel is discharged through a tail-race, emptying into the river six hundred and eighty-six feet above the dam. It is not disputed that, when the flash-boards are on and the dam is full, the water is thrown back on the wheel of the rolling-mill to such an extent as to greatly impair its power. There has been a mill on this site for many years. The defendant has operated a mill there, as owner, since 1856.
This action was commenced July 29th, 1875. There is no proof of the use of flash-boards prior to 1845. A single witness swears he assisted in putting them on in that year. Another says they have been put on every spring and taken off every fall, for twenty years, as near as he can recollect. He testified May 31st, 1876. The evidence will, perhaps, justify the conclusion that they have been used every year during the summer, from 1845 to 1875. The evidence also tends to show that they were occasionally removed by the defendant when they raised the water to such a height as to obstruct the wheel of his mill. The dam was repaired in
The right claimed is an easement of flowage, and can only be supported by proof of facts which will justify the presumption of a grant. Every riparian owner has a right to-have the waters of a natural stream passing through or along his land, to flow in their accustomed channel freely, without obstruction or diversion, and he who attempts to obstruct their natural course must show a grant, either actual or presumptive, or answer for an unlawful act.
Title to an easement acquired by adverse user rests upon a presumption of an actual grant which has been lost. The legal theory is, that no man will, knowingly, allow another, peaceably and uninterruptedly, to have the exclusive adverse enjoyment of a valuable right in his lands, under a claim of title, for twenty years, unless the adverse right is founded on a grant which he is bound to respect; and hence, in every case where such a user is shown, the law, for the purpose of quieting titles and avoiding disputes respecting stale rights, presumes that an actual grant was originally made. To raise this presumption it must be shown that the use or enjoyment has extended over a period of twenty years; and, also, that it has been continuous and peaceable. Long—that is, during the time required by law; continuous—that is, uninterrupted by any lawful impediment; and peaceful— because if it be contentious and the opposition be on good grounds, the party will be in the same condition as at the beginning of his enjoyment.- There must be longus usus, nee per vim, nee clam, nee precario. Gale & What. on Eas. 122, marq. note; Washb. on Eas. 112; Sargent v. Ballard, 9 Pick. 251.
To show that it was peaceful, proof of acquiescence by the owner of the servient land in the exercise of the right, is indispensable. The presumption of a grant can only be made when it is a natural and logical consequence of the
At common law, any acts of interruption or opposition from which a jury might infer the enjoyment was not rightful, Avere sufficient to defeat the effect of the enjoyment, the question being, whether, under all the facts of the case, such enjoyment had been had under a concession of right. Gale & What on Eas. 123, marg. note. The supreme court of Massachusetts, in Powell v. Bagg, 8 Gray 441, said: “ An easement in the land of another can be acquired by adverse user only when it appears such user was exercised with the acquiescence of the oAvner. From such use of an easement for twenty years, the law will presume a grant, but if, before the lapse of that time, the owner of the land, by a verbal act on the premises in which the easement is claimed, resists its exercise and denies its existence, his acquiescence in the right is disproved, and the essential elements of a title by adverse use are shown not to exist. Such a case is unlike the case where a title to land is claimed by adverse possession, and where the true owner is disseized. There a mere verbal command to leave or prohibition to occupy, is not sufficient to overcome the presumption arising from the
According to the rules just stated, the proofs render the presumption of a grant in this case simply impossible. Their force, in disproof of «ueh presumption, is irresistible. Acquiescence means assent and concession, not contention and resistance. No title by adverse user is shown.
It was insisted, on the argument, that, independent of any question of legal right, the acts and omission of Mr. McEarlan estop him from denying the complainant’s right. It is claimed that the proofs show that he stood by passively for a long time, and permitted the complainants to expend large sums of money in deepening their canal and enlarging their boats, under the belief that they had an easement of flowage in his lands, and also that he, as director of the canal company, joined in the execution of the lease under which one of the complainants is now operating the canal. But, in my view, neither fact is established by the evidence. I regard it as entirely clear that the complainants were hot misled by anything Mr. McEarlan said or did. He constantly resisted the right they now assert, and compelled them to exercise it in strife. It is true, he incidentally
In my judgment, the complainants have failed to establish a title to the easement they claim. Their bill must therefore be dismissed, with costs.