Buffum v. Harris

5 R.I. 243

Opinion

Ames, C. J.

The allowing of the opinions of the two engineers, who, as witnesses for the defendant, swore, that his 'drains did not injuriously affect the fountain of the plaintiff, to pass to the jury, coupled with the facts upon which they founded them, . affords no ground for a new trial of this case. One of the engineers was appointed by the court for the purpose of examining into and reporting upon this very subject; and founded as the opinions of both were upon the relative levels of the drains and fountain, and the nature of the intervening soil, known to both of them, it would be difficult to imagine who would be experts upon such a subject, if they were not. Their business, in superintending the construction of mill-dams and other guards against the flow of water, as sworn to by one of them, makes them practically acquainted with the relative capacity of our different common soils to -resist the percolation of water; and that, too, without claiming for them any high degree of scientific attainment with regard to the nature of soils or the laws which regulate the flow or action of water.

The same remark applies to the admission of the well-digger’s opinion to pass to the jury, to the effect, that two feet of the subsoil intervening between the fountain and “ the short drain,” if left undisturbed, — the subsoil being such as his business exer cised in that neighborhood informed him that it was, — was sufficient to dam the former against the latter.

The farmer, and the gardener, too, although the farmer joined the business of scythe-making to farming, both of whom swore that they had attended to and practised the draining of lands for the purpose of making them cultivable, were surely competent, as experts, to testify to their opinion that the land of the plaintiff required draining to fit it for cultivation, and to the fact that for that reason they had advised it; the purpose of the testimony being, to meet the imputation cast upon the defendant, that he had laid his drains in the fountain lot, for the sole purpose of diverting, and of draining water, from the fountain of the plaintiff. Indeed, knowledge of any kind, gained for and in the course of one’s business as pertaining thereto, is precisely that which entitles one to be considered an expert, so as to render his opinion, founded on such knowledge, admissible in evidence.

We are at a loss, too, to see wherein the judge who presided at the jury trial in this case erred, to the injury of the plaintiff, in directing the jury in regard to the construction of the plaintiff’s grant from Smith Arnold. The grant was of “ a certain spring or fountain of water,” situated on a piece of land, the title to which has since become vested in the defendant. It was made, as the grant itself expressly says, for the sole purpose of enabling the plaintiff to supply' the inhabitants of a certain school district in Cumberland, lying within the limits of the village of Woonsocket Falls, with water, for family and other use; and the spring or fountain, when no longer applied by the plaintiff to that use, was, by the terms of the grant, to revert to the grantor. The fountain was supplied, as the evidence tended to prove, by the spring; and that issued from beneath a rock at the bottom of the fountain. This fountain and spring, with the building over it, and the privilege of deepening the reservoir of the fountain under the building, with right of making improvements on the land of the grantor about the fountain, so that the grantee might have, in the afterwards specified manner, the full use and benefit of the water of the fountain, and of laying and repairing pipes to conduct the water of the fountain through the land of the grantor towards the Tillage of Woonsocket, together with the ancillary right of visiting and examining both fountain and pipes for the purpose of repairs, constitute the entire subject of the grant. We know not what the counsel for the plaintiff means by his suggestion, that, under the grant, the plaintiff has the right of leading the water from any other springs on this land to his fountain, for the purpose of improving the same; when the grant itself expressly refers to another fountain or other fountains on the land of the grantor, possible or existing, (which of course must be fed by springs,) the waters of which the grantor expressly retained the right to convey or to sell, for the use of the inhabitants of the very school district which the granted fountain was designed to supply with water, if the supply from the granted fountain should prove to be insufficient for their wants ; the grantee, in such case, to have merely the first offer of such other fountain or fountains if the grantor should choose to sell them.

Now, in construing such a grant, as he was bound to do, with reference to the character of the subject of it, the judge surely did not misdirect the jury when he told them in substance, that if they found from the evidence, that the subject of the grant was a fountain fed by a spring issuing from beneath a rock at the bottom of the fountain, they were bound to construe the grant as not excluding the owner of the land from the right of surface drainage, whether the surface water, which had fallen as rain, or came from other springs, flowed through the top soil, down the hill, towards the fountain, or, without the fault of the defendant, from the fountain, into the top soil below it. The surface water is certainly not included in the grant of a fountain which is fed by a spring at the bottom of it; but so far from being included, when the grant was designed, as this was, for the sole purpose of supplying the people of a village with pure water, is, by necessary implication, excluded from the grant, as it would be excluded by a sensible grantee, by every means, from his fountain. It may, without doubt, by express terms or necessary implication, be granted ; but both of these are wanting in this grant to convey it. On the contrary, the implication here is quite the other way ; inasmuch, as the grant guards against an interference by the grantee with the husbandry of the fountain lot, through an improper or negligent exercise of his granted rights in it. It indicates, in other words, that it was understood by the parties, that the land in which the fountain was situated, was, notwithstanding the grant, to be used by the grantee for agricultural purposes; and if so, the right of surface drainage, as well as every other agricultural right, would be presumed to be retained, unless plainly at war with the terms or operation of the grant. The right to change the level or direction of an agricultural drain, as the cases cited in the brief of the counsel for the defendant show, is not lost from a presumed grant to another of the right to use the water flowing therefrom, proved by his use of the water for twenty years and upwards: and can, with as little propriety, be presumed to be parted with by an express grant which does not necessarily include it. The water, whether it has fallen as rain, / or has come from the overflow of a pond or swamp, which sinks into the top soil and struggles through it, following no defined channel, is deemed by the law absolutely to belong to the owner of the land upon which it is found, for the avowed purpose of enabling him to cultivate his land by controlling or draining it off in the mode most convenient to him ; and is not affected by any right in the owner of an adjoining river, pond, or tank, which it may chance for the time to feed, though that time be ever so long protracted. It is not water in a watercourse, or in an infinitesimal number of minute watercourses, in the sense of being obedient to the law regulating the use of water flowing in such defined natural channels ; but is, in the eye of the law, as well as of common sense, the moisture, and a part of the soil with which it intermingles, to be there used by the owner of the soil, if to his advantage, or to be got rid of in any mode he pleases, if to his detriment. The language of Baron Alderson, in delivering the judgment of the court of exchequer in the recent case of Broadbent v. Ramsbotham, 34 Eng. L. & Eq. R. 562, 563, brought by a mill-owner to recover damages against a land-owner for diverting water “ coming to his mill-stream, called Longwood Brook, from four sources of water upon the defendant’s land, to wit: a pond, a swamp, and two wells,” is quite apposite to express what we deem to be the settled law upon this subject.

“ Now, we think that this water,” (the water of the pond,) “ both that which overflows and that which sinks into the land, belongs absolutely to the defendant, upon whose land it arises, and is not affected by any right of the plaintiff at all. The right to the natural flow of the water of Longwood Brook undoubtedly belongs to the plaintiff; but this right cannot extend further than the right to that which flows into the brook itself, and the waters flowing into a natural channel, either subterranean or otherwise, or over the surface communicating directly with the brook itself. No doubt, all the water falling.from the heavens, and then upon the surface of the hill, at the foot of which the brook runs, must, by the force of natural gravity, find its way into the bottom, and so into the brook; but this does not prevent the owner of the land on which the water falls, from dealing with it as he pleases, and appropriating it to his own purposes. He cannot, it is true, do so, if the water has once arrived at and is flowing into some natural channel already formed; but he has a perfect right to appropriate the water before it arrives at such a channel. In this case, the basin is formed upon his own land, and the water belongs to him, and the water from heaven lodges there. There is here no watercourse at all. If this water exceeds a certain depth and escapes upon the land, and squanders itself, so to speak, over the adjoining surface, the owner of the soil has clearly a right to drain this shallow pond, and get rid of the inconvenience at his own pleasure.

“ The same may be said of the swamp of sixteen perches, which is merely like a spring, so to speak, fixed in the side of the, hill. If this overflows, it creates a sort of marsh adjoining, and there is properly no course of water either into or on the surface of the water. As to the subterranean courses communicating with this swamp, which must exist, it is sufficient to say, that they are not traceable so as to show the water, passing along them, ever reaching Longwood Brook. This falls, therefore, within the same category, or rather is a stronger instance of the rule before mentioned.”

The same doctrine is then applied by him to the diversion by the defendant of the overflow of two wells upon his land, before the water had reached any defined natural channel, conveying it onwards to Longwood Brook.

It will be noticed, that the objection raised by the counsel of the plaintiff to the right of the defendant to drain his land, as laid down by the presiding judge in this case, to wit, that thereby the surface-water, which by some secret channels or sluices feeds the fountain or spring of the plaintiff, may be diverted, though none such are known, is directly met and disposed of by the court in the above case.

In fine, we see no error in the instructions given to the jury upon this point of the case, and think, that in application to the evidence in it, the plaintiff received the benefit of all the direction in his favor to which he was entitled, when the jury were told, “ that if the defendant had purposely or negligently constructed his drains, so as thereby to drain the water off from, or to lessen the quantity of water in, the plaintiff’s fountain, he would be liable to the plaintiff therefor.”

The motion for a new trial in this case is therefore denied, with costs.