102 Mass. 454 | Mass. | 1869
In this case, the right of the respondent, by prescription, to flow the land of the complainants, must be taken to have been established by the verdict. ■ Upon the testimony of the respondent himself, it is also manifest that the right he had thus acquired did not extend through the whole, of the summer season. The precise measure of the exception, or the limitation of his right, is the only point upon which any question is now open. As it must depend entirely upon the effect which
The respondent testified that he never ran his mill “ in hay time.” The general tenor of his testimony is to the effect that he stopped it in order to do his own haying; and that was the only recognized interval of disuse. But we think it might fairly be deduced from his testimony that he did in fact also suspend for the haying upon the meadow, of the complainants. He represents this as done only upon request and for the sake of accommodation, and not as the concession of any right. But as his own right depends upon actual use, it would not seem that his reasons for the omission were of any consequence, unless the repeated requests were of such a character as to amount to the recognition of his right by the owner below.
But whether “ hay time ” is to be limited to the respondent’s own haying, or to include also any further time necessary or reasonable to enable the complainants to get off their hay, it is clear that the result of the respondent’s testimony, and the natural and reasonable inference to be drawn from it, is, that the period of suspension of the use of the mill was governed by the haying season, and measured by that, and not by any particular interval reckoned upon the calendar, nor by any specific length of time. It is well settled that a right, or an exception from or modification of a right, may be thus defined by the purpose of its enjoyment, or of the omission to exercise it. Cowell v. Thayer, 5 Met. 253. Bolivar Manufacturing Co. v. Neponset Manufacturing Co. 16 Pick. 241. The irregularity in the commencement and termination of that season does not make it too indefinite as a measure; nor will the limitation of the right acquired by the millowner be equal to the extreme limits of time over which the haying season may have extended in any of the different years during the acquisition of the right. Ray v. Fletcher, 12 Cush. 200.
If the modification of the right to flow is for the haying season, or the period required for the getting off of the hay from
But, upon the other aspect of the case, to wit, that the respondent’s rights were to be determined by the periods of actual use during the twenty years previous, and that the burden was upon him not only to establish his right generally, but to show that it extended over the period in controversy, we are of opinion that there was some evidence upon which a jury might properly find that his right to flow did extend into the month of July, or cover some part of the two months during which the court below ruled, as matter of law, that he had shown no right by prescription. In fixing the definite period of the entire months of July and August, for the time during which the testimony of the respondent conclusively precluded him from having acquired any right by prescription, the court assumed to pass upon that which should have been submitted to the jury.
Exceptions sustained.
