35 Conn. 419 | Conn. | 1868
This was an action on the ease for an injury caused by erecting certain small stone piers in the plaintiffs’ mill pond by which the plaintiffs claim the volume of water, to which they have a right for the operation of their mill, to be lessened. The dam of the plaintiffs is across the upper part of Coscob harbor, and the power which they apply to the operation of their mill is obtained by retaining the water in their pond after the falling of the tide. Originally the place occupied by the mill pond, being the upper part of Cos-cob harbor, was an arm of the sea, and as such was navigable water, and seems by the finding to have been used as such since the erection of the dam, as vessels have since then been built and launched above the present location of the plaintiffs’ dam. It has, however, now ceased to be useful for any such purpose, and has become practically useful only as a mill pond. Still the plaintiffs do not own the soil of the pond. They have a right to the use of it for the purpose of retaining water upon its site in order to operate their mill. But the title, it being navigable water, below high water mark is in the public, with the right of wharfing out in the proprietors along the shore to such, an extent as may be done without injury to the plaintiffs’ mill pond. Originally they had the right of wharfing out into the harbor so far as it might be done without an injury to navigation. The plaintiffs and those under whom they claim have acquired their right to the use of the premises by user, and of course the extent of their right must be measured by the extent of the user. This user of the plaintiffs’ grantors commenced in 1764. It originated in the petition of David Bush to the inhabitants and proprietors of Greenwich, for liberty to erect a tide mill and mill dam on St: ickland’s brook at Coscob in said Greenwich, “where the said grist mill and dam would no ways incommode, but be greatly beneficial to the public, and be no ways prejudicial
In coming to this result we do not intend to say that the defendant would be justified in wharfing out into the pond, or filling in upon the shore, so as materially to affect the valúe of the plaintiffs’ privilege. That would depend upon circumstances which are not before us, as upon the size and shape of the pond; and whether the wharfing or filling would affect materially the capacity of the pond as a receptacle for water to operate the plaintiffs’ mill, and the flow of the water to the place where it is used. But we think we can see, what indeed the court has directly found, that piles driven into the ground, or small stone or brick piers on which a building or a bridge may be erected, cannot injure the plaintiffs in the use of the waters of this pond. The displacement of the water by such erections is so inconsiderable as to be wholly inappreciable in respect to the quantity required to operate the plaintiffs’ mill, and cannot therefore be the subject of recovery in this action.
The plaintiffs seem to rest upon the idea that every, even the slightest, diminution of the quantity of water which can be held within the limits of the pond, is a technical injury for which an action will lie, because by long continuance it might ripen into a right. And Parker v. Griswold, 17 Conn., 288, and other similar cases, are cited in support of the claim. If the plaintiffs owned the soil under the waters of the pond then undoubtedly the act of the defendant would be a trespass for which damage would be presumed as a necessary consequence. And perhaps such a material diminution of the volume of water as to affect the power applicable to the operation of their mill might subject the defendant to liability. But the cases on which the plaintiffs rely are not applicable to the case under consideration. In Parker v. Griswold there was a material diversion of water which the plaintiff had a right to have flow by and over his land in its accustomed course. And although he owned no mill then operated by the water,
We are of opinion therefore that there is no error in the judgment complained of, and a new trial is not advised.
In this opinion the other judges concurred.