14 Vt. 239 | Vt. | 1842
The opinion of the court was delivered by >
The only questions of law which can be raised, either in this court, or the county court, in a case like the present, are those which are expx-essly decided by the referees, and which may be supposed to have affected the final determination of the case by them.
There has beén considerable said, at the bar, upon the question, how far the grantee of land, upon which the grantor had placed obstructions in a running stream of water, is liable for the injurious consequences to others, owning land on the same stream. It seems to be admitted, on all hands, that such grantee may be made liable for the continuance of such obstructions, after reasonable notice to remove them ; but the question made here is whether he is liable without
It is a well settled principle, that a servient proprietor of land cannot complain of any use which the dominant proprietor may make of the water in a stream, so long as he is not sensibly affected by that use. The dominant proprietor may divert the water from its usual channel, but if it is returned to the same channel before it reaches the land of the next proprietor below, no one can complain. But if the water is diverted into a new channel, and then the new channel obstructed, so as to carry off the water wholly in an
We do not consider it necessary to discuss the question, how far a proprietor of land below defendant’s mill, and who had received the waste water upon his land at a new point, (and not in the old channel,) and who, in faith of its continuance, erected mills, or machinery, and this had continued for fifteen years, could insist upon the continuance of the flow of the stream in its new channel. It is a case wholly dissimilar to the present one. And it is a case not without difficulty. The case of Arkwright v. Gell, Gale & Whately on Easements, 126, 130, is one, I think, which does not precisely involve this question. That case seems to have been decided upon the very ground that the flow of water, being from the use of mines, was, in its very nature, temporary, and must have been so understood by both parties. The discharge of an eave-spout, or the drainage of lands, or mines, or any other temporary flow of water, and where positive and artificial means were necessary to keep up the stream, if continued for more than fifteen years, might give the right to the dominant owner to flow the water upon the land of the servient owner. For the acquiescence in what would be a nuisance, unless done by permission, for the term of fifteen years, will, in law, raise a presumption of a grant. But when this is for the benefit of the person doing it, and he has to make use of positive means to continue it, no presumption whatever arises that he has contracted to continue it. In the cases supposed, every reasonable man would expect the owner to remove his eave-spout, or his
Judgment affirmed.