32 N.H. 90 | N.H. | 1855
Every owner of land situate upon a stream has a right to the natural flow of the stream; a right to insist that the
The precise case before us, which is of a class of which the instances are comparatively unfrequent, that of turning a stream from its natural channel and forcing it to run in the channel of another stream, was decided in Merrill v. Parker, Coxe, (N. J.) 460, cited Ang. on Wat., p. 835. The point, as it arises in the French Law, is fully discussed in Pardessus on Servitudes, secs. 82, 85 and 88.
It seems very evident that if a man’s land is materially damaged by water thrown upon it by reason of the acts of another, it can make no difference what the source of the water may be ; whether it be back water, or the flowage of the same, or the
It is a long established principle of the common law, that wherever any act injures another’s right, and would be evidence in future in favor of the wrong doer, an action may be maintained for an invasion of the right, without proof of any specific injury. 1 Wms. Saund. 346, note 2, to Mellor v. Spateman. This principle has been recognized here in the case of Woodman v. Tufts, 8 N. H. 91; Snow v. Cowles, 2 Fost. 302; Cowles v. Kidder, 4 Fost. 379 ; Bassett v. Salisbury Manufact. Co., 8 Fost. 455. In the last case it was held that the state of the plaintiff’s interest might be properly inquired into, because, if he sustained no damage in fact, and had no interest that could be affected by the danger of an accruing easement, he might not recover any damages. That is not the present case. The plaintiff appears to be owner in fee.
It is suggested that the injurious acts were continued for but ” a short time, and that, instead of being an injury, they were really a benefit to his land. The case of Patrick v. Greenway, cited in Sergeant Williams, note, before referred to, seems decisive as to the first. It was trespass for fishing in the plaintiff’s several fishery, in which he obtained a verdict, and the court refused to set it aside, though he caught no fish, upon the ground that the act of fishing was not only an infringement of the plaintiff’s right, but would be evidence of using and exercising the right by the defendant, if the act were overlooked. No infringement of the rights of another can be justified on the ground that the act is a benefit to the owner, if it is done against his will. Judgment on the verdict.