123 A. 826 | N.H. | 1923
Upon evidence assumed to be competent and sufficient, as no exception is taken because of its insufficiency on either ground, it is found that the plaintiffs on March 27, 1898, owned the right to maintain their dam to the height of six and a half feet as they now claim, and to flow the land of the defendants by maintaining the dam at that height. On that date the dam was swept away by a freshet. The dam has not been rebuilt to its former height, and the question in controversy is whether the plaintiffs still own the rights of flowage owned and exercised by them in March, 1898.
As to the land of the defendant tannery company, it is found that for more than sixty years prior to the destruction of the dam the plaintiffs and their predecessors in title claimed and exercised the right of flowage to the extent now claimed. As suggested, it is not contended the plaintiffs' right was not established as existing in March, 1898. The only question is whether it has been lost by non-user for over twenty years. During the non-exercise of the flowage right there has been no adverse use of the flowable land by the owners. There has been no abandonment in fact by the plaintiffs of their rights as they existed at the destruction of the dam. There was no evidence of a grant from the owners of the land now held by the Winchester Tannery company, other than the claim and exercise of the right for over sixty years, and these defendants contest the decree upon the ground that abandonment of an *126
easement proved by use is conclusively presumed from twenty years' non-exercise of the right. No length of time of mere non-user will operate to impair or defeat an easement acquired by deed. Howard v. Britton,
It is not easy to discover any legal difference between the effect of a deed proved by the writing itself and one proved by circumstantial evidence. Arnold v. Stevens, 24 Pick. 106, 118. See Angell on Watercourses (7th ed.), note pp. 419, 420, s. 252. There is no logical basis for a distinction between a grant proved by documentary evidence and one proved by long enjoyment. Veghte v. Company,
The cases are few which go so far as to sustain the defendants' present contention. The earliest case referred to in the books, Prescott v. Phillips, said to have been decided in 1797, is not found in any volume of reports. It is cited from Evans' Pothier on Obligations. The translator relates it as a case within his experience in which the defendant had an ancient mill weir (how obtained is not stated) which he allowed to fall into decay, and after a period of twenty years another mill was erected, and it was held the cesser of twenty years was an extinguishment of the right although no act had been done by the owners of the adjacent land adverse to the right. This is precisely the defendants' case and exactly supports their contention. Evans, however, criticises the conclusion of the court, saying it ought not to have been presumed the right was lost or abandoned, for one reason because no inconsistent or adverse enjoyment had been shown. One English case decided in 1814 at nisi prius, Lawrence v. Obee, 3 Campbell 514, is reported, which directly supports the defendants' contention. This was an action on the case for erecting a privy in the defendant's house which was a nuisance to the adjoining house of the plaintiff. It appears that the privy when first erected was no nuisance to the plaintiff, but she afterwards struck out a window in the wall of her house immediately over it; and that then unpleasant smells were introduced into the house through this window. There was the mark of an *127 old window in the place where this window was struck out, but it had been filled up with brick and mortar about twenty years before the privy was erected. Lord Ellenborough held, the report says, that from the window having been shut up twenty years the case stood as if it never existed, and that the plaintiff having brought the nuisance upon herself by opening the window had no right of action. According to this case a right to maintain a nuisance was obtained by less than twenty years' user, while the plaintiff lost her window right by failure to open it for twenty years.
On the other hand, in Ward v. Ward, 7 Exch. 838, when the defendant claimed an immemorial right of way, it was said by Alderson, B.: "The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user, therefore, must be the consequence of something which is adverse to the user." No well considered modern case has been found holding that mere non-use of an easement for the statutory period will destroy the right, however proved.
Rhodes v. Whitehead, 27 Texas 304[
The modern rule of the effect of non-user goes no farther than the statement in 9 R. C. L., p. 811: "By the prevailing rule, while the nonuser for such period is evidence of an intention to abandon the easement, it is open to explanation, and may be controlled by proof that such intention did not exist." See 3 Kent, Com., *448, *449. The concluding statement, "but it has been decided on the other hand that the presumption is conclusive," is not supported by Webber v. Chapman,
It is true it is said, p. 335: "In the case of private ways, a nonuser for twenty years affords a presumption that the right never existed, or has been extinguished in favor of some adverse right. As an enjoyment for twenty years is necessary to found a presumption *129
of a grant, the general rule is that there must be a similar non-user to raise a presumption of a release." In citing the language of Judge Sargent to the proposition that mere non-user raises a conclusive presumption of abandonment, the fact that the non-user referred to is described as "similar" to the use by which such a right can be gained must have been overlooked. Mere enjoyment of an easement for the statutory period will not conclusively establish the prescription. Such enjoyment must be open, under claim of right, with the knowledge and acquiescence of the owner of the servient tenement. Wallace v. Fletcher,
In the case under discussion the adverse occupation of the land in which the public right of way was claimed was fully proved. That the court in discussing the extinguishment of a like private right had in mind a similar possession of the land in which the right was claimed is made clear by the discussion of the character of the title which could be acquired by adverse possession as set forth in Wallace v. Fletcher,
Nothing said in Webber v. Chapman aids the defendants. They failed to establish a title by possession adverse to the plaintiffs' claim. There is no contention that the findings of the absence of an intention on the part of the plaintiffs to abandon their right or of the want of a possession in the tannery company adverse thereto are not sustained by the evidence. What circumstances in connection with non-user would justify a finding of abandonment or would estop the plaintiffs from again exercising the right which it is found they owned in 1898, are questions which are not presented.
Exception overruled.
All concurred. *130