Snow v. Cowles

22 N.H. 296 | Superior Court of New Hampshire | 1851

Bell, J.

The case of Woodman v. Tufts, 9 N. H. Rep. 91, is decisive as to Simon Cowles, who became a part-owner of the Dexter Mills in 1846, after the repairs, which form the chief ground of complaint, had been made in 1844. No change of the dam or flume appears to have been made after he became the owner, which would subject him to any action. So far as the dam and flume are concerned, he would be liable, if at all, only for continuing the nuisance, which had been erected by others two years before. He was not notified to remove the dam, or that it was injurious to the owners below, or that they wished it to be removed. He was of course not liable for any injury the plaintiffs may have sustained from the continuance of the dam and flume in the same condition in which they were when he acquired the title.

Albert Cowles was, however, liable for any damages he might cause to the plaintiffs, by obstructing the natural flow of the water to the mills below, beyond what must necessarily arise from a reasonable and proper use of the water, while it was passing his premises, unless he had acquired a right to obstruct or divert the water, by a grant, actual or presumed, or by twenty years adverse possession.

The case does not show how far the obstruction complained of was occasioned by a reasonable use of the water, nor how far the defendant had acquired rights to interfere with the natural flow of the stream, by grant or otherwise. No such rights can be presumed without proof, nor inferred by the Court, though there is evidence which the jury might consider as to these points.

The injury resulting to the plaintiffs, from the continuance of the dam and flume, being caused by the act of this defendant, he cannot avail himself of the want of notice to his co-defendant, and the nonsuit as to him was wrong, and should be set aside on this point.

But we understand the case to present another ground of claim against both the defendants, which is entirely free from this objection of the want of notice, not resting on the form, or construction, or state of repair of the dam, but upon an alleged wrongful use made of it, by shutting some of the gates, through which only the water could reach the plaintiffs’ mills, and thereby obstructing the natural flow of the water for some weeks in the fall of 1848, at all hours, to the injury of the plaintiff, while previously, it would seem, the gates had been closed, at most, only during the hours when labor is usually suspended. For this injury, it is contended the defendants are not responsible without notice, because it was occasioned merely by the continuance of a dam erected by others before their purchase, on the ground that a purchaser has a right to suppose that the dam and mills which he has bought were rightfully erected and maintained, and that they may be lawfully maintained and used, as works of that kind usually are. This view, we think, cannot be maintained. The general principle supported by the case of Woodman v. Tufts, is, that a man ivho purchases land, on which there is a nuisance or cause of nuisance to an adjoining landowner, is not liable for continuing the nuisance, as it was when he purchased. That case was one of a man continuing a dam standing on land purchased by him, and thereby flowing a meadow above, and it was held that he was not liable for continuing the dam and flowing as before, until notice had been given him. We speak loosely of a dam, which occasions an injury to the land of others, as a nuisance, though when erected on a man’s own land, it may rather be deemed the cause of a nuisance, since a dam may be so constructed, (and perhaps they generally are so,) that it is capable of producing injury to the owner of the land above or below, and yet be so managed that it is not a nuisance, and occasions no damage. It is not even loosely to be spoken of as a nuisance, until it produces some injury or damage to others, hut if it is so used as wrongfully to throw the water upon the lands or mills of another, it may be called a nuisance. Generally, a man may erect such a dam or structure of any kind upon his own land, as he thinks proper, if he does not injure the property of his neighbor or infringe upon his rights. It may he such as, if used in the ordinary way in which property of a similar kind is generally used, it must become a nuisance, and yet if not so used, it furnishes no just ground of complaint. The right of the purchaser to use the dam he has purchased, to flow the land of others without liability till notice, is not to use it as such property is ordinarily used, but merely to flow the land, as it was flowed before ; to continue the nuisance, that is the flowing or diversion, as it was at the time of his purchase. In the present case, the right of the defendants rvas to continue to use their dam to obstruct or divert the water, without liability until notice, in the same manner as the persons of whom they purchased w’ere using it, at the time they purchased. The evidence here tends to prove, that they obstructed and diverted the water in a manner entirely different from their grantor’s use of the property; closing, for weeks, gates which he kept open in the usual working hours. This is an original wrong of both these defendants, for which they are responsible without notice, and the obstruction and diversion of the water in that way being admitted by the case, it is a presumption of law that the act is a damage. See Woodman v. Tufts, before cited.

For this injury the plaintiffs were entitled to proceed. The nonsuit was therefore wrong, and must be set aside.