43 Ky. 514 | Ky. Ct. App. | 1844
delivered the opinion of the Court.
In 1797, Yocum obtained leave from the County Court of Montgomery to erect a mill and a dam, ten feet three inches high, on Slate Creek, he being the owner of the land on both sides of the creek. In 1801, after Yocum had erected his dam to the height of about ten feet, Henry Myers obtained leave to erect a dam and mill on the same creek, above the dam of Yocum, which he did erect in that and the following year. In the fall of 1842, Manier, who had become the proprietor of Yocum’s mill, erected a new dam a little above the site of the old one but adjoining the old abutment on one side. In August, 1843, Myers and Johns, who had for some time been the proprietors of Myers’ mill, brought this action on the case against Manier, to recover damages for the alledged injury done to their mill by the erection of the new dam, whereby, as they say, the water is backed up and thrown upon the wheels and running gear of their mill so that they cannot use and enjoy it and make profit by it, as they had a right to do, and as they had theretofore done.
' Both mills appear to have been in operation ever since their first completion, that of Myers having been subject, from the first, to be obstructed or drowned by freshets, even when the backwater was not thrown [upon it by the dam below, but not being obstructed by backwater in ordinary stages of the water, previous to'the erection of the new dam. This last fact is stated by many witnesses; some of whom also state that since the erection of the new dam the mill The Case Stated Myers is obstructed and drowned by
We do not, however, feel called upon to investigate these questions of fact, since, in the conflict of testimony and opinions, the verdict for the plaintiff, sustained by the opinion of the Circuit Court, must, if uninfluenced by improper instructions, be deemed conclusive as to the facts involved in it. We shall, therefore, proceed to consider the principles of law involved in the case, and to compare the opinions of the Circuit Court in giving and refusing instructions with our own conclusion.
Yocum, having first obtained the privilege of erecting a dam of a prescribed elevation, had the undoubted right to build and maintain it at that elevation, by such repairs as] might, from time to time, be required. And Myers, having subsequently obtained leave to build a dam and mill higher up the stream, had no right to complain, if in consequence of théir location they were subject to be and were in fact overflowed or otherwise obstructed in their operation, and rendered useless by the proper exercise of the privilege previously granted to Yocum. It is not to be presumed that Myers located his mill in such a position as to be seriously obstructed in its operations at their very commencement by the dam of Yocum, as it then existed. But if it were so located as that the dam of Yocum, being then precisely ten feet three inches high,
It is obvious that the same questions will arise if it be assumed that although a dam built by Yocum as authorized, to the height of ten feet three inches, would have prevented the advantageous operation of a mill built where that of Myers was afterwards located; yet the dam was either not erected to that height at first, or being at first of that height, became afterwards so low, either before or after the erection of Myers’ mill, as not to obstruct it, and was permitted so to remain for a Tong period, during which Myers used his mill and enjoyed the use of the water and the free course thereof for the purposes of the. .milk If there was such continued enjoyment and use on the part of Myers or his successors in the ownership of the upper mill as to constitute or evidence a right on his part to a continuance of the same, then the subsequent elevation of the lower dam, whether by addition to the old structure or by the erection of a new one, so as to im
Upon the first of the two questions which have been stated, viz: Whether any length of enjoyment, adverse to and in consistent with an existing right in another, would in point of law or as matter of evidence, have the effect of destroying that right and uniting the right with the possession or proving such union, we think there cannot be a doubt.
This proposition, in the terms in which it is stated, is not understood tobe denied on the part of Manier. But it is contended by his counsel, that here is no adverse enjoyment, and nothing but a partial non-user of their right by Yocum and his alienees, and that such non-user could not, alone, deprive them of their right, or confer it on another. If by this argument it is intended to assert that if Yocum's dam had been built only to the height of eight feet, or having been built higher, had afterwards sunk to that elevation, and in either case had so remained for thirty or fifty or one hundred years, and at the end of that period another had, under proper authority, built a dam and mill above, at a site where it would not be obstructed by the back water from the lower dam, as it then existed, and as it had existed for thirty, fifty,-or one hundred years, the owners of the lower dam might immediately after, wards elevate it to a greater height, not exceeding their original privilege, without subjecting themselves to an action for any injury which might be thereby occasioned to the upper mill, though we are by no means prepared to concede such a proposition; yet as it does not, in our opinion, involve the question presented in this case, we deem it unnecessary to decide or to discuss it. The case before us, as insisted on by the defendants in error, and . as intended to be presented to the jury by the first instruction of the Court, is one not merely of a partial non-user of the privilege on the one side, but also of a continued
It is argued that the enjoyment in the ease before us, and in the cases which we have assumed for presenting the question, is not in the nature of a disseizen, and is, therefore, not such an adverse enjoyment or possession as in analogy to other cases, will furnish ground for presuming a grant. It is true, the enjoyment of the free flow of the water from the upper mill did not constitute such an invasion of the possession of the owner of the lower mill, or such an infringment of any of his rights as,would authorize an action, and therefore, there is no room for the direct application of the statute of limita/ tions, nor of the consequences directly arising from the statutory bar. And if 'the statute of limitation furnished the only foundation for the presumption of right growing out of long enjoyment or possession, there might be no just ground for applying such presumptions where the statute could not be applied. But the statutes of limitation, instead of being the basis of these presumptions, are, to a certain extent, founded on them. One great-object of these statutes is to preserve the peace and quiet of society by giving security to long continued possession. But even this is a pre-existent policy, rather the cause than the effect of the statute. And although, so far as they assume any particular period as sufficient to establish a conclusive presumption of right, they may be admitted to be arbitrary, yet even in this respect’they do not create the presumption but regulate it and determine its force. Before the enactment of any such statutes and in cases
It is presumed, on principles belonging to the nature of man, that every one will enjoy his own, and that no man will stand quietly by and permit another wrongfully to enjoy that which belongs to himself. The law, therefore, presumes in favor even of a present possession unaccounted for, and holds it to be a grade of title, and a presumptive evidence of right; much more will it presume in favor of long continued possession, evepi independently of the statutes fixing a bar by time to the assertion of adversary rights. If a possession adverse to the right is to be defeated by action, the statutory bar ap. plies, and will, in time, operate to transfer the right to •the possession. And although, when no action can be brought to defeat the possession, the same lapse of time may not have the same peremptory operation of transferring the right to the possession, yet surely when inquiring into the effect of time and possession, as mere evidence, they cannot in point of reason be entitled to less weight because the party claiming or having the right in the beginning need not or could not resort to an action to defeat the inconsistent possession, but may defeat it by the simple and peaceable exercise of his right. The questions why the party has so long abstained from the exercise of his right, and why he has so long acquiesced in an enjoyment and possession by another, inconsistent
In regard to the particular subject of water, Lord Ellenborough said in the case of Beaty vs Shaw, (6 East, 208:) “I take it that twenty years exclusive enjoyment of water in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grantor act of Parliament.” And although the expression “conclusive presumption,” may be too strong, unless understood to mean conclusive until disproved, yet in other respects the position contained in this sentence seems to be entirely consistent with the current of modern English authorities; the period of twenty years having been taken in analogy to the statutory limitation of possessory action for land.
The right, for the alledged violation of which this action was brought, is an easement or service in the nature of an incorporeal hereditament, and in the case of Million vs Riley, &c. (1 Dana, 362,) this Court recognizes the doctrine that grants of incorporeal hereditaments are presumed, after a possession of twenty years, in analogy to the statute of limitations — and many English cases establish the presumption. There are also various American cases in which it has been decided that the use of water for such a length of time as would, by statute, bar a possessory action for land, will furnish ground for presuming a grant. In this case the Circuit Court seems to have assumed thirty years as the period of enjoyment necessary to establish the right, But we do not see why,
The first of the two instructions given by- the Court seems to be defectively copied, and does not, as presented in this record, contain a complete proposition. In
"Wherefore, for this error, and because the instructions do not, in other particulars above referred to, conform to the exposition of the law of the case as made in this opinion, the judgment is reversed and the cause remanded for a new trial. ■