By the Court,
Savage, Ch. J.
The first objection taken by the plaintiffs in error on the argument is, that it does not affirmatively appear that the judges who made the assessment were not interested in the lands. The statute says that application may be made to three judges, &c. not interested in ■such land. It appears from the return that notice was given to the plaintiffs in error of the time and place of the meeting of the judges, for the purpose of assessing the damages, and that the plaintiffs attended; that they asked an adjournment, which was granted, and that they afterwards attended and made no objection on the ground of the interest or supposed interest of the judges. It seems to me, therefore, that if there had existed any such objection, it was waived. This case is distinguishable from that of Gilbert v. The Columbia Turnpike Company, 3 Johns. Cas. 107. The act of the judge in that case was altogether ex parte ; no notice was required nor given to the opposite party. The statute under which the proceedings in that case were instituted, enacted that in case of disagreement between the company and any owners of lands over which the road might pass, the company should apply to one of the judges of the common pleas, not interested in said road, who should appoint commissioners to assess the damages. By the return to the certiorari, it appeared that the commissioners had been appointed by a judge of the common pleas, but it did not appear that he was not interested in the road. The party in that case had no notice of the application to the judge to appoint commissioners; the company proceeded at their peril; they were bound to see that the statute was strictly pursued, and that the proceedings on their face [175]*175should shew a strict compliance with the statute; but bad it appeared in that case that the party to be affected had appeared before the judge, and had been called upon to shew cause why commissioners should not be appointed, and this had been required by the statute, could he afterwards object that the judge was not qualified, on the ground of interest 1 Should he not have made his objection when he appeared 1 and if he omitted to do so, did he not waive it 1 Is not his silence an admission that the judge was qualified according to the statute 1 In that case no legal notice was given to the party whose lands were taken, and he did not appear at all; the whole proceeding was ex parte ; nothing was or could be waived in such a case; yet, in that case, the question of interest was not a question of jurisdiction, but of regularity. The court say that the disagreement of the parties and consequent application lay at the foundation of the proceedings ; that the disinterestedness of the judge and commissioners was necessary to an impartial decision. Consent cannot give jurisdiction, but cures irregularity. An appearance before judges of any other county than Onondaga could not give them jurisdiction, but cures any irregularity not objected to at the time. In this case the parties appeared and made no objection ; this was an admission of the competency of the judges.
2. The plaintiffs’ second point is that there can be no claim for damages sustained by the dam of 1809, as after so long an occupation a grant is to be presumed. The case of Bealy v. Shaw and others, 6 East, 208, is much in point. The defendants and those under whom they claimed had used a certain portion of a river for much more than twenty years when the plaintiff built a mill on the same stream below the defendants. About four years after the erection of the plaintiff’s mill, the defendants drew out of the river by a sluice a much larger quantity of water, which was returned to the stream below the plaintiff’s mill, by means of which the plaintiff was injured. The defendants contended that, having had the free use of the river for a long time, and having appropriated as much as they thought proper, it was not competent for the plaintiff to abridge their right by erecting new works, but that he must [176]*176take the river subject to the defendants’ use of it. The judge decided that every person possessing lands on a stream of water was entitled to the natural flow of the stream, unless there existed in others a right to divert a part of it; that every such exclusive right was to be measured by the extent of its enjoyment ; that if more water had been taken from the river after the plaintiff built his mill, this was a damage to him for which an action lay. The court, upon a motion for a new trial, held the decision at nisi prius to be correct. Lord Ellenborough, in giving his opinion, among other things, says: “ I take it that twenty years exclusive enjoyment of the water in any particular manner affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of parliament ; but less than twenty years enjoyment may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right.” The common law has limited this period, in analogy to the statute of limitations ; twenty years occupution of another person’s land, under a claim of right, gives.a title—it affords a presumption of a grant. So occupying the land by flowing it with water for twenty years affords a presumption of a grant of the use of it in that particular manner, and for the damage sustained thereafter no action lies. The law was so recognized in Connecticut, in Sherwood v. Burr, 4 Day, 244. In that case the plaintiff had a fulling mill on the same stream upon which the defendant lower down had a corn mill. The plaintiff’s mill had been erected more than forty years, and the defendant’s more than eighty years. Within ten years the defendant had raised his dam one foot higher than it had been, by which the water was thrown back upon the plaintiff’s wheel and it became useless. The plaintiff was held entitled to recover ; for though the defendant in that case would have had a right to raise his dam in the first instance to its present height, yet, having raised it only to a certain height, and permitted another to acquire rights by occupation for more than 15 years, which in that state is the limitation by which title is acquired by adverse possession, his original right was lost by nonuser. So in the case of Stiles v. Hooker, 7 Cowen, 266, it was held that where the defendants had used the water at a certain [177]*177height for 20 years, a grant would be presumed to that extent ; but where the water was raised higher, so as to injure the plaintiff’s mill above on the same stream, the defendants were liable for the injury arising from the increased height of the water. This principle, applied to this case, is a complete justification to the plaintiffs in error as to any damage arising from the flow of water occasioned by the dam of 1809. Twenty years having expired since the erection of that dam, a grant will be presumed of a right to continue the dam at the height of the. original dam, and to raise the water as high as it stood for 20 years. But as to the increased quantity of land covered with water by the dam of 1820, the owners of the dam have no justification. The act of 1809 authorized the erection of the dam, but provided a mode of ascertaining the damages which individuals might sustain.
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By the Court,
Savage, Ch. J.
The first objection taken by the plaintiffs in error on the argument is, that it does not affirmatively appear that the judges who made the assessment were not interested in the lands. The statute says that application may be made to three judges, &c. not interested in ■such land. It appears from the return that notice was given to the plaintiffs in error of the time and place of the meeting of the judges, for the purpose of assessing the damages, and that the plaintiffs attended; that they asked an adjournment, which was granted, and that they afterwards attended and made no objection on the ground of the interest or supposed interest of the judges. It seems to me, therefore, that if there had existed any such objection, it was waived. This case is distinguishable from that of Gilbert v. The Columbia Turnpike Company, 3 Johns. Cas. 107. The act of the judge in that case was altogether ex parte ; no notice was required nor given to the opposite party. The statute under which the proceedings in that case were instituted, enacted that in case of disagreement between the company and any owners of lands over which the road might pass, the company should apply to one of the judges of the common pleas, not interested in said road, who should appoint commissioners to assess the damages. By the return to the certiorari, it appeared that the commissioners had been appointed by a judge of the common pleas, but it did not appear that he was not interested in the road. The party in that case had no notice of the application to the judge to appoint commissioners; the company proceeded at their peril; they were bound to see that the statute was strictly pursued, and that the proceedings on their face [175]*175should shew a strict compliance with the statute; but bad it appeared in that case that the party to be affected had appeared before the judge, and had been called upon to shew cause why commissioners should not be appointed, and this had been required by the statute, could he afterwards object that the judge was not qualified, on the ground of interest 1 Should he not have made his objection when he appeared 1 and if he omitted to do so, did he not waive it 1 Is not his silence an admission that the judge was qualified according to the statute 1 In that case no legal notice was given to the party whose lands were taken, and he did not appear at all; the whole proceeding was ex parte ; nothing was or could be waived in such a case; yet, in that case, the question of interest was not a question of jurisdiction, but of regularity. The court say that the disagreement of the parties and consequent application lay at the foundation of the proceedings ; that the disinterestedness of the judge and commissioners was necessary to an impartial decision. Consent cannot give jurisdiction, but cures irregularity. An appearance before judges of any other county than Onondaga could not give them jurisdiction, but cures any irregularity not objected to at the time. In this case the parties appeared and made no objection ; this was an admission of the competency of the judges.
2. The plaintiffs’ second point is that there can be no claim for damages sustained by the dam of 1809, as after so long an occupation a grant is to be presumed. The case of Bealy v. Shaw and others, 6 East, 208, is much in point. The defendants and those under whom they claimed had used a certain portion of a river for much more than twenty years when the plaintiff built a mill on the same stream below the defendants. About four years after the erection of the plaintiff’s mill, the defendants drew out of the river by a sluice a much larger quantity of water, which was returned to the stream below the plaintiff’s mill, by means of which the plaintiff was injured. The defendants contended that, having had the free use of the river for a long time, and having appropriated as much as they thought proper, it was not competent for the plaintiff to abridge their right by erecting new works, but that he must [176]*176take the river subject to the defendants’ use of it. The judge decided that every person possessing lands on a stream of water was entitled to the natural flow of the stream, unless there existed in others a right to divert a part of it; that every such exclusive right was to be measured by the extent of its enjoyment ; that if more water had been taken from the river after the plaintiff built his mill, this was a damage to him for which an action lay. The court, upon a motion for a new trial, held the decision at nisi prius to be correct. Lord Ellenborough, in giving his opinion, among other things, says: “ I take it that twenty years exclusive enjoyment of the water in any particular manner affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of parliament ; but less than twenty years enjoyment may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right.” The common law has limited this period, in analogy to the statute of limitations ; twenty years occupution of another person’s land, under a claim of right, gives.a title—it affords a presumption of a grant. So occupying the land by flowing it with water for twenty years affords a presumption of a grant of the use of it in that particular manner, and for the damage sustained thereafter no action lies. The law was so recognized in Connecticut, in Sherwood v. Burr, 4 Day, 244. In that case the plaintiff had a fulling mill on the same stream upon which the defendant lower down had a corn mill. The plaintiff’s mill had been erected more than forty years, and the defendant’s more than eighty years. Within ten years the defendant had raised his dam one foot higher than it had been, by which the water was thrown back upon the plaintiff’s wheel and it became useless. The plaintiff was held entitled to recover ; for though the defendant in that case would have had a right to raise his dam in the first instance to its present height, yet, having raised it only to a certain height, and permitted another to acquire rights by occupation for more than 15 years, which in that state is the limitation by which title is acquired by adverse possession, his original right was lost by nonuser. So in the case of Stiles v. Hooker, 7 Cowen, 266, it was held that where the defendants had used the water at a certain [177]*177height for 20 years, a grant would be presumed to that extent ; but where the water was raised higher, so as to injure the plaintiff’s mill above on the same stream, the defendants were liable for the injury arising from the increased height of the water. This principle, applied to this case, is a complete justification to the plaintiffs in error as to any damage arising from the flow of water occasioned by the dam of 1809. Twenty years having expired since the erection of that dam, a grant will be presumed of a right to continue the dam at the height of the. original dam, and to raise the water as high as it stood for 20 years. But as to the increased quantity of land covered with water by the dam of 1820, the owners of the dam have no justification. The act of 1809 authorized the erection of the dam, but provided a mode of ascertaining the damages which individuals might sustain. Though the defendants in error have by delay lost the right to damages arising from the dam of 1809, if the dam of 1820 raises the water higher, and flows more land, the provisions of the act of 1809 apply to ascertain the damages by the second dam, until 20 years shall have expired after the erection of the second dam.
The rule of damages adopted by the judges seems to have been the value of the land ; that is wrong. The rule for this case would be the use of the land covered by the increased height of the water above the dam of 1809, for six years. Had it been a case in which an action could have been brought, the plaintiff could not recover for more than six years, because it was his own fault that an action had not been sooner brought. In analogy to the statute, the defendants in error cannot appraise damages for a longer period. The defendants in error founded their claim for damages forever, as it is expressed, on the assumption that the dam was to continue forever. The grant was in the first place for 20 years; the second for 21 years more ; but that is not the criterion by which to ascertain the damages for flowing land. The value, deducting the benefit, would have been the rule of assessment for any land taken for the erection of the dam under the act of 1809; but not as to flowing. It may be, that when the plain[178]*178tiffs in error see the amount of damages assessed, they may prefer to. take down their dam, and then the defendants will have the use of their land; of course, they should not have damages for being deprived of that use.
There is no foundation for the point made before the judges that the second section of the act of 1809 was repealed by the act of 1823. The latter act declared certain waters highways, but specified the rights which certain individuals had to encroach upon the rights of the public in passing upon those highways. This act contains no repeal of the previous acts, and was not intended to affect the rights of individuals, any farther than the rights of the public were concerned.
3. If I am right in the proceeding views, it is not important to consider the third point made by the plaintiffs in error, that Rogers had a mere right of action which could not be assigned with the conveyance of the land; no right of action, strictly speaking, existed. This was the case of a public improvement; the damages were to be ascertained in the manner pointed out by the statute, and not by action, as has been decided between these parties, 4 Wendell 667. . I am inclined, to the opinion, however, that in making assessments the judges should consider the damages analogous to a right of action, and not assignable.
4. The plaintiffs in error insist that the defendants are not entitled to damages in consequence of the dam of 1820 : 1. Because none were specifically proved as arising from that cause ; and 2. Because, by analogy to the statute, they are barred by delaying to apply within six years after the building of the dam. On the first ground the assessment must be set aside; the judges have not confined their assessment to the damages arising from the dam of 1820, but have embraced the whole period during which the lands have been overflowed. The second proposition under the fourth point cannot be sustained ; the cause of action is a continuing one ; the damage was not all done by the erection of the dam, but is done daily by the continuation of the dam ; so that the defendants in error are entitled to recover all the damages sustained within six years previous to their application, and in that respect the proceeding is analogous to the action for mesne profits, or for use and occupation.
[179]*179The defendants in error contend that the assessment of the judges is conclusive as to the amount of damages. It would be so undoubtedly, had the assessment been made upon correct principles. It is not in the power of this court to review the assessment as to its amount, and increase or diminish the amount; that is a subject not under our control. Upon certiorari we can only look into the correctness of the proceedings of the judges as they appear upon the record ; the evidence before them as to the amount of damages, constitutes no part of the record. But we have a right, and it is our duty to inquire into the principles upon which the judges assessed the damages, and if they were erroneous, the whole assessment must be set aside. I apprehend we have no power even to send the proceedings back to the judges, but that new proceedings must be instituted, if the defendants in error wish to pursue the remedy which they have according to the preceding principles. The judgeshaving heard the case and given their certificate, are functus officii, and can no more entertain jurisdiction of the matter again, without new proceedings, than a justice can try a cause again, after reversal of his judgment, until a new suit is brought, where such suit is consistent with the decision reversing his previous judgment.
The proceedings of the judges must be reversed.