Cary v. Daniels

49 Mass. 466

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1844
• Status: Published

Opinion

Shaw, C. J.

The leading fact in the present case is, that at the time when Hall and others, under whom the defendant claims, conveyed the upper mill to Wilson, under whom the plaintiff claims, they were also the owners of the lower mill, the dam of which is complained of, by the plaintiff in this action, as a nuisance. The complaint is, that the lower dam is so raised as to set back the water and obstruct the free use of the plaintiff’s water wheels.

Two questions were made at the trial. 1. Whether, as contended for by the plaintiff, he is not entitled, as against the defendant, to a free and unobstructed use of the stream below his mill, including a right to have the water run off as low as it would run in its natural bed ; or whether, as the defendant contends, the plaintiff is entitled to no greater privilege, in this respect, than that which was used for the upper mill against the lower, with the dam raised to the same height to which it was raised when the conveyance was made from the owners of both mills to Wilson. 2. Whether the plaintiff and those under whom he claims, with the conveyance of the upper mill, acquired a right to continue a practice, which had formerly existed when both mills were owned by the same persons, for the occupants of the upper mill, in times of high water, to go down to the middle dam and open the waste gates therein, and by this means relieve the upper mill from back water; and, if so, whether it was a violation of this right, for which the plaintiff can maintain an action, that the defendant had taken away the middle dam, and erected his dam several hundred feet lower down, by means of which, and by the mode of constructing his new dam, he had rendered it impracticable, or more burdensome and expensive, to exercise such right of opening the waste gates and relieving his mill from back water

On the first point, we are of opinion that the claim cannot be maintained. It is placed on the ground, that the owner of land, through which a stream of water passes, has a right to the run of the water in its natural channel through his land; that a grant of the land, prima facie, and without express reservation, is a grant of such right, and therefore that a grant to Wilson, by Hall and others, who were then owners of both mills, was a grant of an unobstructed flow of the stream below the land granted ; and hence, that the grantors could not erect any dam, or maintain any dam already erected, which would in any manner obstruct the flow of the stream in its natural channel, and that the defendant, being privy in estate with those grantors, took the lower mill subject to the same right of the grantee and his assigns. The plaintiff also relies upon the covenants, contained in the deeds of the same grantors to Wilson and his assigns, that the granted premises were free from all incumbrances brought thereon by them, and that, if there was a right to maintain the lower dam, so as in any degree to throw back water upon the plaintiff’s mill, it would be an incumbrance.

It is agreed on all hands, that the owner of a parcel of land, through which a stream of water flows, has a right to the use and enjoyment of the benefits to be derived therefrom, as it passes through his own land ; but as this right is common to all through whose lands it flows, it follows that no one can wholly destroy or divert it, so as to prevent the water from coming to the proprietor below; nor can a lower proprietor wholly obstruct it, so as to throw it back upon the mills or lands of the proprietor above. We, of course, now speak of rights at common law, independent of any modification thereof by statute. But one of the beneficial uses of a watercourse, and in this country one of the most important, is its application to the working of mills and machinery; a use profitable to the owner, and beneficial to the public. It is therefore held, that each proprietor is entitled to such use of the stream, so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvement in hydraulic works, and not inconsistent with a like reasonable use by the other proprietors of land, on the same stream, above and below. This last limitation of the right must be taken with one qualification, growing out of the nature of the case. The usefulness of water for mill purposes depends as well on its fall as its volume. But the fall depends upon the grade of the land over which it runs. The descent may be rapid, in which case there may be fall enough for mill sites at short distances; or the descent may be so gradual as only to admit of mills at considerable distances. In the latter case, the erection of a mill on one proprietor’s land may raise and set the water back to such a distance as to prevent the proprietor above from having sufficient fall to erect a mill on his land. It seems to follow, as a necessary consequence from these principles, that in such case, the proprietor who first erects his dam for such a purpose has a right to maintain it, as against the proprietors above and below ; and to this extent, prior occupancy gives a prior title to such use. It is a profitable, beneficial, and reasonable use, and therefore one which he has a right to make. If it necessarily occupy so much of the fall as to prevent the proprietor above from placing a dam and mill on his land, it is damnum absque injuria. For the same reason, the proprietor below cannot erect a dam in such a manner as to raise the water and obstruct the wheels of the first occupant. He had an equal right with the proprietor below to a reasonable use of the stream ; he had made only a reasonable use of it; his appropriation to that extent, being justifiable and prior in time, necessarily prevents the proprietor below from raising the water, without interfering with a rightful use already made; and it is therefore not an injury to him. Such appears to be the nature and extent of the pri- or and exclusive right, which one proprietor acquires by a prior reasonable appropriation of the use of the water in its fall; and it results, not from any originally superior legal right, but from a legitimate exercise of his own common right, the effect of which is, de facto, to supersede and prevent a like use by other proprietors originally having the same common right. It is, in this respect, like the right in common, which any Individual has, to use a highway ; whilst one is reasonably exercising his own right, by a temporary occupation of a particular part of the street with his carriage or team, another cannot occupy the same place at the same time.

But such appropriation of the stream to mill purposes, upon the principles stated, gives the proprietor a prior a,nd exclusive right to such use only so far as it is actual. If, therefore, he has erected his dam and mill, with its waste ways, sluices and other fixtures necessary to command the use of the watei to a certain extent, and there is a surplus remaining, the proprietor below may have the benefit of that surplus. If he erects a dam and mills, for the purpose of using and employing such surplus, he is, as to such part of the stream, the first occupant, and makes the first appropriation. As to that, therefore, his right is prior and exclusive. And although the proprietor above might, in the first instance, have raised his dam higher, keeping within the limits of a reasonable use, yet after such appropriation by the proprietor below, he cannot raise his dam and take such surplus ; because, as to that, the lower proprietor has acquired a prior right.

So the proprietor above may, in like manner, make any reasonable use of the stream and fall of water which he can do consistently with the previous appropriation of the proprietor below. If, with a view of gaining an advantage to his mill, in low stages of water, which may occur perhaps during the greater part of the year, he places his mill so low that, in high stages of water, the dam below will throw back water on his wheels, he may do so if he choose, because he thereby does no injury to any other proprietor. But if he sustains a damage from such back water, it is a damage resulting from no wrong done by the lower proprietor who had previously established his dam, and it is an inconvenience to which he subjects his mill for the sake of greater advantages; and he has no cause to complain.

Another consequence from this view of the rights of successive proprietors to the use of the fall of water, on their respective lands, is this ; that where one has erected a dam and mil on his own land, to a given height, and thereby appropriated as much water as he has occasion for, and there is still a surplus, he has the same right as any other proprietor to appropriate that surplus. If, therefore, before any other person has erected a dam above him or below, so near as to be injured by the change, he elects , to appropriate the surplus, or a part of it, he may either raise his dam higher, and thus create a greater head above, or place his wheels lower, so as to discharge the water at the race at a lower level, and thus appropriate to himself such surplus water and power of the stream. In regard to such surplus, he will still be the first occupant.

One other consideration of a general nature, applicable to this subject, it may be proper to advert to. It is obvious that these rights to the use and power of flowing water, whether it be the original right belonging to each successive proprietor to the flow of the water in its natural channel over his own land, or the same right modified by actual appropriation, may be granted away, or acquired, or may be limited, enlarged or qualified, by grant from the proprietor in whom either of them is vested, or by that exclusive, adverse and continued enjoyment which is regarded in law as evidence of a grant. If, therefore, one has enjoyed a particular use of the stream and water, or water power, for a period of twenty years, even though such use would not have been warranted by his original right to the natural flow of the stream — as by diverting it, or raising it unreasonably high, or otherwise — he will be presumed to do it by virtue of a grant from all those whose rights are impaired by such use; and thus his right to continue so to use it will be established. But if he shall thus exceed the equal, common and original right, thus belonging to him as a proprietor, and not justify such use by grant or prescription, it will be deemed a disturbance of the rights of those whose beneficial use and power of the stream are thereby diminished.

Supposing these principles to be well founded, let us proceed to apply them to the present case. The plaintiff is the owner of the upper mill, and he claims it under Wilson, who took it under a deed from Hall and others, who were, at the time, proprietors of the lower mill. It is then argued, that if the proprietors of the lower mill ever had a right to keep up their dam to the height at which it stood at the time of this conveyance, it was an easement; that it was extinguished by unity of ownership ; that, consequently, when they conveyed their upper mill, without reserving an easement anew for their lower mill, the easement was gone.

There is some danger of being misled by names, and by analogies between things which are alike in many respects, but not in all. The right to the use of flowing water is, in many respects, like an ordinary easement, but not in all. The right to the use of the flow and fall of the water on the land of the proprietor is not an easement; it is inseparably connected with and inherent in the land, is parcel of the inheritance, and passes with it. The right to have the water flow to one’s land over that of the upper proprietor, and to flow from it over the land of the lower proprietor, is more like an easement, because it is a right to some benefit in the estate of another. But it does not necessarily follow that, like a common easement, it is extinguished by unity of ownership between the dominant and the servient tenants. The right to the use of the water is inherent in the land, and in each parcel; but it is a right publici juris, and subject to the rules of law securing to each successive proprietor the like use. If the owner of a large tract, through which a watercourse passes, should sell parcels above and below his own land retained, each grantee would take his parcel with a full right, without special words, to the use of the water flowing on his own land, as parcel, and subject to the right of all other riparian proprietors to have the water flow to and from such parcel. There is no occasion, therefore, for the grantor, in such case, to convey the right of water to the grantee, or reserve the right of water to himself, in express words; because, being inseparable from the land, and parcel of the estate, such right passes with that which is conveyed, and remains with that which is retained. Treating the right as inherent in the land, attaching to each parcel through which the stream passes, and the right to have water run to and from the land of each proprietor, over that of all others, as an easement or service, each parcel is, in turn, a dominant and servie.nl tenement; dominant, to secure the proprietor’s own right and servient, to secure the rights of others. If, therefore, such easement is extinguished by unity of ownership, it is created anew by every new division or severance of ownership; and this consequence necessarily results from the nature of their rights. These principles arise from the nature of the inherent and original rights of proprietors to the common and equal use of the flow of a stream; but they apply, with equal force, to the modified rights of owners in the same stream, as acquired and appropriated by actual, prior, reasonable use and enjoyment.

The right, then, which Hall and others, at the time of their conveyance of the upper mill to Wilson, had in the lower mill, and in the flow and fall of the stream, as modified by an appropriation by means of the dam and fixtures then established, was not a mere easement which had been extinguished by unity of ownership, but was parcel of the estate ; and no part of it would pass by their deed of the upper estate to Wilson, without express words. The deed from Hall to Wilson — and those of the other tenants in common are substantially like it — is as follows: “ One fourth undivided part of a certain tract or parcel of land situated in Medway,” (described,) “together with one fourth undivided part of the privilege of water, creek, factory, saw mill, dwelling-houses and other buildings situate on the premises, and of the water wheels, main gears, main drums, connected with the said factory and saw mill, and of all the privileges and appurtenances thereunto belonging.”

This deed certainly conveys nothing, in terms, but the mills and mill privileges, and the land over which the stream passes. Does it, by implication, extend further ? If we are right in the principles stated, then a deed of land over which a watercourse passes will convey the right of the grantor as it then actually exists. If it be a stream wholly unoccupied, the grantee will take it, with a right to make a reasonable appropriation of the use of the whole stream. If it has been partially appropriated, he will take the land and watercourse, with a right to such use as can be made of it consistently with the right of other riparian proprietors, modified by their prior rightful appropriations. If the stream have been so fully occupied that the grantee cannot raise his dam without throwing back water upon the proprietor above, nor require the proprietor below to remove his dam, or reduce its height, because he has only exercised his just right of appropriation, then the grantee, takes the land with the right to the flow and power of the water, as it then exists, on the land conveyed, and no more.

Such appear to us to be the effect and legal operation of the deed above stated, so far as it regards the estate next below, which alone is now in question. The removal or reduction of the grantor’s dam below, although it might increase the power and value of that above, was not necessary to the use and beneficial enjoyment of the estate granted; and no implication arises from that consideration. We can see nothing to extend the operation of this deed beyond the plain import of its terms, which was, to carry the land, mills and water power, as it was then modified and appropriated by the dam below.

And we think the same answer applies to the argument drawn from the qualified covenant of warranty, by the grantors, against all incumbrances brought upon the premises by them. The right to the use of the water below the granted premises, as modified by the appropriation previously made for the lower mill, was not, in legal contemplation, an incumbrance, but rather in the nature of parcel of such lower estate. One mode of testing this is, to inquire what would have been the operation of a general covenant of warranty, in this deed, against incumbrances, if the lower mill, with the rights of water appropriated to it by the existing dam, had been owned by a third person. Would the existence of the lower dam, with the existing right of raising xvater by it to the height at which it then stood, have been an incumbrance for which the grantors would be liable on such covenant? We think it would not. So we think this qualified xvarranty against incumbrances brought on the estate by themselves was not broken ; because their maintaining their lower dam, to the height to which the water had been appropriated for its use, was not an incumbrance upon the estate granted.

The next claim of the plaintiff is this; that he had a right, founded upon the usage and practice of his grantors, to open the waste gates of the middle dam, and thereby relieve his own mill from back water; and that the defendant, by taking down the middle dam, and erecting a new dam further down the stream, had either prevented him from the exercise of this right, or rendered the exercise of it more onerous and expensive. The court are of opinion, that this claim cannot be sustained. At the time of the practice relied on, the grantors were owners of both mills, and might favor one at the expense of the other, as the exigencies of their business might require, or at their own mere pleasure. But no right could be founded on such practice ; because it was not adverse. When the estates were severed, and the rights of the respective proprietors became adverse, they stood upon the same footing as if no such usage had existed. The damages, therefore, which were given by the jury, for the violation of this supposed right, must be deducted from the verdict. The removal of the dam of the defendant some hundred feet lower down the stream, if it made the same appropriation of the stream as was made by the mill and dam as they stood before, and no larger, was not an injury to the plaintiff, but was a just exercise of the defendant’s own right.

But, for the reasons already given, the court are of opinion, that the defendant had no right to erect his new dam higher than his old one, so as to appropriate an increased portion of the stream to his own use, and thereby set back water upon the mill wheels of the plaintiff. The jury having found that he had so raised his dam, to the injury of the plaintiff, and assessed damages therefor separately, we think the verdict must be amended, so as to stand as a verdict for the latter sum only, and that judgment be rendered thereon for the plaintiff