6 Paige Ch. 435 | New York Court of Chancery | 1837
I concur with the vice chancellor in the Conclusion that the evidence in this cause establishes a prescriptive right in the complainant to divert a portion of the waters of the Spring from them natural channel across the defendant’s land, in the manner and to the extent that the complainant and those under whom he claims have been in the habit of diverting the same since 1804. In the case of Belknap v. Tremble, (3 Paige’s Rep. 605,) I had occasion to advert to the rule of law on this subject, as correctly laid down by the learned commentator on American law, that the exclusive enjoyment of water in a particular way for twenty years or more, without interruption, is sufficient to raise a presumption of a grant to use it in that manner ; and that it is not necessary that the person claiming this prescriptive right should have used the waters exactly in same way for the whole twenty years, provided the mode of using it has not been materially'varied to the prejudice of the rights of others during that time. In the present case the water diverted from the spring to the ten acre lot was at one time used for the purposes of a distillery, at another for scouring and dressing cloth, and at other times for domestic purposes at the dwelling houses on the complainant’s ten acre lot. But the extent and manner of diverting the water of the spring for these several purposes, by means of an aqueduct of a particular size and construction at the spring, has at all times been substantially the same. The prescriptive right established, therefore, is not a right to divert water for any specific purpose, or to divert so much water as may be necessary for a particular object; but it is the right to divert the water in a particular manner and to a certain extent, from its accustomed channel, for the purpose of being used on the complainant’s ten acre lot.
Although the complainant’s right to the use of a portion of the water of the spring out of its natural channel is thus'
Upon principle I think the rights of the parties must be the same whether the spring issues from the earth upon the land of Adams, or after passing under ground through his land first makes its appearance upon the surface of the earth upon the lot of Smith, a little further down. The only difficulty presented in the latter case is to establish the fact that the water diverted is the same which in its natural course issued upon and flowed across the lands below. And such was the decision of Lord Ellenborough in the case of Balston v. Renstead, (1 Camp. 463.) Here the fact, is clearly established that the stream of water of half an, inch in diameter, which the defendant has diverted to his house by means of the aqueduct upon his own land* is a part of the larger stream which naturally issued from the
But in this case I find no evidence from which it can fairly be inferred that the complainant has sustained any injury whatever on the ground that the water which flows through the defendant’s half inch quill is not suffered to run in its accustomed channel across the corner of the spring lot. The defendant might therefore say to the complainant, in the language of Latona to the Lycian clowns,
“ What rudeness water for my use denies,
“ Whose endless store the common world supplies ?
“ Nor light nor air did Heaven create for one,
“ Nor gentle streams.” '(Ovid’s Met. 4.)
Indeed it appears from the testimony, that the complainant had himself said he would have been willing to let the defendant have the water for the use of his family for six pence a year. And as he waited until the defendant had completed his aqueduct before he applied to this court for an injunction, I think he should have been left to his appropriate remedy by a suit in a justice’s court to recover the damages, if any, which he had sustained by the defendant’s proceedings. (See Coalter v. Hunter, 4 Rand. Rep. 58.)
Again; had the complainant succeeded in satisfying the court that he had sustained a few dollars damages by the wrongful act of the defendant, the bill should have been dismissed with costs on the ground that the claim was wholly beneath the dignity of this court. The legislature has wisely ordained that parties shall not be subjected to the expense of litigating questions of property here, where the object to