| N.Y. App. Div. | May 15, 1896
The defendant has shown the right by grant to draw “ one inch in diameter of water ” from Willow pond. He has in actual use two pipes, each of about that capacity, and claims title to the second one by prescription. If the grant confers title to the use of the water through what is called the “upper pipe,” then his title to the use of the water through what is now called the “ fountain*pipe ” would seem to be good by pijpscription, since the use through the latter pipe has been sufficient in time, notoriety and claim of right to make good such title. Not so, however, as to the “upper pipe.” The use of that pipe has not been constant, or open, but occasional, and the fact that it led from the Willow pond is not shown to have been known to the owner of the pond, the pipe being under ground, and its connection with the pond being rarely observable. Besides, if the pipe at its place of discharge* had been observed by the owner of the pondy he might have attributed its supply to a. spring formerly open upon defendant’s premises, hut now dried up or covered over. We think the learned trial judge was right in holding that the “ fountain pipe ” is the one secured to the defendant by graDt. His remote grantor Eddy, in 1833, had the right and privilege of taking water fronvthe ditch or raceway leading from said creek (i e.y Willow pond) to the cotton mill in an aqueduct “one inch in diameter.” The precise point from which the water is to he taken is-not here specified. In 1840 Eddy conveyed to the Giles brothers, under whom the defendant holds as then conveyed, “ the right and privilege of drawing one inch in diameter of water from the said pond or reservoir between the first and second reservoirs.” The “reservoirs” last mentioned probably means “ watering places ” in the margin of the pond, of which three are described m the same grant. In 1840 the fountain pipe did not exist, and the upper pipe is nob shown to have existed. The only pipe through which water is shown to have been drawn led from the spring before mentioned to an old house then on the premises In 1842 Giles built a new house and made a fountain nearly upon the site of the old house, and then he laid the fountain pipe to the fountain. We think the evidence of Mrs. Giles, widow of the Giles who laid the fountain pipe, justifies the inference that lie did so in pursuance of his right under liis deed from Eddy, a right not used until then. Mrs, Giles, in her testimony, repeatedly speaks of hearing it mentioned that her husband had bought the right to lay the fountain pipe. As there is no valid evidence of such a purchase except that expressed in the deeds, we may assume that to he the purchase to which Mrs. Giles referred as the one under which the fountain pipe was laid. It is true that this pipe leads from the first watering place instead of from between the first and second watering places; hut the difference is slight, and after fifty years of practical location and acquiescence by the parties interested the location should not be disturbed. Confirmatory of this conclusion is the character of the fountain pipe; it is about three inches in diameter from the Sond-to the fountain, vhere the orifice of ischarge is reduced to one inch, thus enabling the defendant to obtain what his grant confers, namely, “one inch in diameter of water,” instead of water led through a pipe of one inch in diameter, which would he less. Mr. Giles having thus located the fountain pipe in pursuance of his rights under the deed,, we may the more readily assume that the upper pipe, if it existed as early as 1842 — the testimony adduced to show which the learned trial judge disbelieved — was practically abandoned, and the new location adopted in its stead. The existence of the upper pipe was known only to a few, and its use rare and occasional. It was plugged up repeatedly. The practical abandonment of the upper pipe and the practical location of the fountain pipe as the granted location should not be disturbed after the acquiescence of so* many years. The early intention should not ’