*1 WILDER, v. CLOUGH. Clough. Wilder v. March 12, 1875. A &B raised the water their dam so appeared Tullere as to JETeld, land of A that this not an user. adverse above— & Co. against Wilder Levi for TRESPASS, Clough, [ land and plaintiffs’ throwing it, back-water and upon injuring the mills, and filling up raceway wheels, impeding &c. Writ dated March 30,1872. owned and a mill-dam and on plaintiffs occupied privilege Squam Ashland, river in and the defendant and mill, another occupied owned dam, and river, on same privilege below that of the immediately In the one plaintiffs. owned land year Joseph Shepard own, which now but mill privilege there was no or dam time; it at that one Nathaniel M. Shaw and the owned the lower privilege land owns, defendant now and a dam had been built on that date. before On September 22,1847, and Shaw a division of agreed their land and water-power, gave deeds to each other. The of the land in description Shepard’s title, deed to Shaw as follows: All my right, interest in, of, aforesaid, unto river Holderness below a line across said river from an extending east marked, tree the south- being land corner a tract of which the said Shaw and Aaron M. Gordon of Moses in a bought Merrill, direct with line the east side line in said so tract Moses bought Merrill, all the including river below said line across the same which 1 reserved in a deed from D. Eastman, 4thDec’r, me to Aquilla A. D. 1830. Fol’o, Recorded Lib. 127, Also, 71. to a my land three rods so wide below said line across said river men- Eastman, tioned in said deed to scribed as follows: excepting part strip de- at low Beginning water mark on the southerly side said river, at a river; across said thence in a continuation of running southerly the said line across said river rods; three westerly thence down said river, three rods from keeping low river, rods; water mark of said three thence northerly paral- lel with river; the first mentioned line to low water mark thence low water mark to the bounds first mentioned: said Shaw to have the said tract said Ash tree.” land in Shaw’s deed to description was as fol- title, lows : “All my right, in, of, interest unto a certain tract follows, situated in Holderness aforesaid, viz., described as of land four rods wide side of southerly river, the low mark in northerly southerly a to said first line, four rods from parallel keeping same, westerly by a line three rods down the river from a line drawn across river continuation of east side line of which said boundary Aaron M. Gordon Merrill Moses bought (the Shaw at the river *2 east- ash tree marked), on said east side line being and southerly the said a line erly by long connecting above river, of the river side at a in the first bend lines

northerly the said point low water mark on south side ash tree at the and west- : easterly most in said bend the southerly the meaning of compass this are to run same point side lines of the erly Gordon Shaw and side line said easterly bought by the sai& said ash tract below Merrill, said excepting Moses said ash said river above all bed of Also, my right tree.” dif- limit of the deeds to by The as fixed these continues line to the time. present water ferent privileges it whether northerly bank of said river: The ash tree stood upon or feet far- four of the bank next to the or three stood the edge upon the deeds north, The reserved dispute. ther strips from rods river, and in back three south side going were on the of the level or above the the land would rise ten feet more river, river. “ under the that asked the court to instruct the jury The defendant to Shaw, has the from to the defendant 1847, deed where lowest of the ash at the body court which the was,” with the as it then ground, contact it comes did height instruct that the at the do, jury but declined ash tree upon flow is a across can defendant the the the time at or about of the water at its ordinary height, surface that law to be and that the take the deed was given; jury might said below, and across the river gives line thus going parties, this would on this they have the same rights his dam, ; defendant, means and way ordinary any line to ap- water on the side of the or raised the flowed extent, the de- ;” to all which the defendant would be liable preciable excepted. fendant privilege that one W. Mitchell owned George upper It appeared 1864, and 1854 to from the year land now owned plaintiffs, in com- mill, dam, and half of the lower privilege he owned one 1862; after others, with Shaw 1855 mon Mitchell rebuilt and said Shaw into the lower bought privilege, made this no use was on that privilege, dam dam a stone said Mitchell built but afterwards privilege, upper hold the the The defendant claimed the right upon upper privilege. ; instructed court but the height by to a certain prescription be ac- stated, could the facts as prescriptive right that upon jury Mitchell 1847, since defendant appearing quired in doing dam building actually engaged ; from 1855 that was done his lower upon business the defendant excepted. aside. to set for the which the defendant moved plaintiffs, Verdict H. for Blair, tlie Burrows, Bingham, plaintiffs. Blodgett, Pike for

Barnard, Wilson, the defendant. J. Tlie deed CushiNG, 0. under which the defendant claims con- tains these words: Shaw to have the tract to the said tree.” river runs a direction nearly west at this to- place wards the Merrimack. There are it two mill privileges,—one defendant, owned one owned plaintiffs, defend- —the claiming ant under above mentioned deed from under a deed from claiming Shaw to Shepard. dividing line between the two as fixed deeds, was a continuation the east side line of the tract of land north of the Shaw of Gordon and Merrill, and purchased passing *3 at near ash tree or the bank of the at river the south-east corner tract. It the deeds that appears the parties, Shaw and each had or claimed to have some in a Shepard, on the rights of land strip bank of the south river. The defendant claims the right to flow so as to raise the water as as the bottom high of the ash tree. held, and the claim, court below that his plaintiffs to right raise the water was limited tween the the line fixed as the dividing line be- that the defendant could not privileges, rightfully, by means of his line. flow or dam, raise the water on the side of plaintiffs’ the the of all his in By Shepard, deed and to rights the river Squam below that conveyed line are to Shaw. The deed next conveys the to a of land rods grantor’s right three wide south strip of the river, a three rods wide excepting river three towards the west strip extending down the rods; tract, and this so the said reserved, Shaw is to have of to ash tree. flowing up Shaw, deed, his all his conveys in a Shepard of strip wide, land four rods three rods down the river the same line, line; also a little his that boundary fact above so in of point Shaw covers deed the very same south strip of the reserves the river which conveys to Shaw Shepard of said tract below said ash It is right portions flowing tree. that plain these of the two cover deeds the same strip ground, giving the of the soil to and the ownership right Shaw; and it is that the same is plain exactly right granted by deed to Shaw the ash Shepard’s tree,” words as is re- in served Shaw’s deed to words below Shepard by the the ash tree.” Shaw’s deed also all his grants the bed right Squam river tree, which, above said ash to the defendant’s according construction, would bed of the put river somewhere above vertically ash tree.

By these deeds the east line of Gordon and Merrill lot tlie was made the boundary line between that getting the two Shaw part

VOL.lv. i. of the below, west e., of the bed tlie stream which situated that tree, getting line drawn the ash through part the ash east, Shep- river ard i. eabove the line drawn through his land deed of a three rods wide got ownership Shaw’s, that strip and Shaw got right wide land far to set back the water the bed as as he got right stream, far as the is, of the that below as same line. is of this boundary It does vertical height appear right at all in the matter. The defendant’s to raise concerned surface of the back, or set limited line. water, to cause it to is as foot of the If he could raise the always high vertically of low water the water back he would time set So, if with it. he interfere privilege, might materially vertically ordinary not to that line time go were limited high by far east as that with the water at his water, he curtailed. What materially gets privilege might be stream as conveyances is, level change line, on level nearly so as to make below medium, or low, at ordi- dam, and that whether he with water high cover nary gets corresponding south of the river. at where the the water Suppose at two feet and the defend- it, line crosses were its deepest deep, ordinary dam were flow of water not alter ant’s so constructed at level: if in the defendant should so arrange low water dam as to of two it is obvious feet, the water a depth keep and inter- would flow on to the plaintiffs’ back mill, so that if this the criterion with the their were operation fere inif contrary, on the materially injured, while,— *4 at times defendant could 'raise high line, the whole of his lose privilege. itAs the case that the defendant’s grantor occupied appears writ, next before date of twenty years both within privileges no and of course tAventy right there could be no adverse user for years, v. 502; v. 9 N. H. Burnham could Odiorne gained. Kemp Lyford, 78; 231; N. on Water ton, Tilton, 44 N. H. v. 5 H. Angell Gilman courses, sec. 340. as to the Ladd, J. 1. is a doubt I think it to entertain impossible all the conveys to Shaw. It construction the deed from Shepard the same a line across rights extending in the river below grantor’s from land tract of described tree, ash a certain right flowing is, this means the to the up tree. defendant’s contention body to the to raise right height the water perpendicular up a most extraor- It less than seems to me that would be nothing and un- entirely is dinary which, itself, plain perversion language could have It what terms is difficult ambiguous. certainly imagine should be used to of flowage been indicate that the right grantee’s do not. ash tree, a line crossing v. WILDER CLOUGH. The instructions on this view, were accordance with this were correct.

2. There can be no doubt of the soundness of the general proposi- tion as to flowage to the given No has a jury. riparian proprietor right throw the water of a stream back above. proprietors But it is said this should general have been proposition qualified by into an going to be explanation doctrines when the applied ques- tion between two shore is owners one of a reasonable use of further, by explanation how it would be times of freshet, floods, ice, accumulation of &c. The short and answer to complete is, this there is nothing case show either of these qualifi- cations was facts; called for further, were they supposed defendant to be germane there should necessary, have been a special to that request purpose. 3. There was no clearly evidence of a right gained by twenty years’ adverse user. Smith, J. The instructions of court, regard height flow, the defendant could were correct. The deed from Shepard to Shaw, of September 22,1847, all his conveys right the river be low a line across the tree, river from the ash all including below said rights line, Eastman, which he in his reserved deed to 4,1830. dated December wide, three rods strip included Shep ard's deed to reserves a below said line, grants Shaw the the ash tree.” The deed from Shaw to 22,1847, Shepard, September conveys to wide on the south side of the river, reserving ” right of tree; said tract below said ash conveys also £call his right the bed of the river above the tree.” Construing these deeds together, they must I think it be, indicates that clearly the intention of was, to bound their parties respective line; flowage this conveyed below line; and that Shaw no acquired to flow above that line. If the one, construction contended for the defendant is the true he could flow to the body tree, and of course as far river would the level bring water to horizon- projected from the foot of tally and thus use the fall of the river above. An examination of the is language the deeds conclusive that such was not the intention of the and it would parties, leave the mill upper worthless. comparatively The defendant could acquire right to flow Mitch- prescription. *5 ell owned both the lower one in common with Shaw from 1855 to 1862. Both claim under him. parties From 1855 to 1862, Shaw and Mitchell could gain no adverse right by possession Mitchell; against and if Shaw at such any began acquire 1862, after it could not into an ripen absolute within less than twenty years, which have yet expired. “ The defendant also objected to the instruction that means he, by CURRIER v. GILMAN. of bis flowed or raised the dam., water on the side of the line

to any extent, the appreciable liable,” because, defendant would be — claims, he him freshets, floods, makes liable for ice, accumulations other visitation of every providence ex- produce traordinary unnatural rise the stream —but I think this result does not was, instruction that he would be liable follow. should by flow above the line means of dam,” and not means by of freshets, mean, &c. The construction must its ordinary and usual and not at unusual and stages, times, when exceptional swollen freshets and clogged ice. overruled, and

Exceptions on the verdict.

Judgment Currier v. Gilman. March 12, 1875.

Mrror—Personal service absent state. of writ—Defendant was served a writ leaving Where summons due at the form usual Stats, state, of abode of the defendant in this place Gen. required by 3, sec. but the defendant was in 204, ch. fact absent from the state time, and did not return until after had been rendered judgment him default in the suit thus commenced, and he against had no proceedings Held, no knowledge service had personal been — and that must made, such on judgment reversed error. James A. Currier C. against Yirgil Gilman, error, Writ Currier, 1874. Said day May, 7th his said writ error, seeks rendered him in against reverse favor judgment of said Gilman at court, term of the judicial held at January supreme Haverhill, district of said the western on 3d judicial county, Tuesday 1873, for three hundred and March, fifty-four dollars and fifty-five dollars and damages, eight costs, cents cents eighty-nine default. The said Currier errors as assigns follows, viz., said suit of —that Gilman Currier was against commenced on the 4th day 1873, and that -February, judgment default, rendered on therein, by day 1873, lltli there been no April, having or for appearance suit; in said that said Currier Gilman’s writ in suit was dated said fourth day February, 1873, served by attaching property Haverhill, in said the 4th and 5th of said Currier, February, a summons due form of law at the last and usual by leaving in said Currier, Haverhill, of said abode on the first day place in no other way; nor service personal legal Currier made on said writ, ever that at the times