The opinion of the Court was by
Shepley, C. J.
The process is a complaint for flowing lands. The defence is a right acquired by prescription to flow them without compensation. A verdict was found in favor of the respondents under instructions which are alleged to have been erroneous. The more important positions presented in argument by the counsel for the complainant, deserve consideration.
1. The first has reference to the conveyance or lease made on January 14, 1822, by Artemas Brigham to Joseph Walker. The jury were instructed that it “ would not prevent the owners of the mills from acquiring a right to flow the lands, by the flowing as before stated for more than twenty years.” The argument is, that by implication it granted the right to build a dam upon the lands of the grantor, and to flow them for the purpose of floating logs from Crotched pond to Long pond.
It recites, that Walker is about to make a canal from Crotch-ed pond to Long pond, for the purpose of slipping timber from one of those ponds to the other; that Brigham is the owner of land in and adjoining the natural stream, which empties the waters of one pond into the other, which will be necessary to be had for the aforesaid purpose.
Brigham leases to Walker “ so much of my said land at and adjoining said stream of water, as shall be found necessary and convenient for him or them to use and occupy for the purpose of making and using a canal, for the object and use aforesaid, and for no other purpose.” Nothing can be considered as [399]*399granted by implication, which is not necessary or convenient for making and using the canal. A supply of water would be necessary for its use, but it would not be necessary, that it should be supplied by the erection of a darn or feeder, upon the lands of the grantor.
The grant of lands, “ for making and using a canal,” is quite different from the grant of lands, for the erection of a dam to raise a head of water, to supply the canal. The right to occupy land to make and use a canal, and the right to occupy it, to raise a head of water to. feed it, are so different, that the one does not by implication or otherwise in the ordinary use of language, or in the construction of such improvements, include the other. A canal may be made and used across the land of a person without injury to his lands, not within the line of the canal and pathway adjoining it. If a grant of land to make and use a canal were to be considered as conveying by implication the right to do all that might be necessary or convenient to procure and continue a supply of water for its use, the grantor might find the value of his estate materially lessened without being aware, that he had in any manner yielded such a right.
If the construction insisted upon were conceded, the conclusion deduced in argument from it, could not be sustained. That appears to be, that Walker owning and occupying the dam, rightfully to float timber and thereby acquiring the right to flow the lands owned by the complainant, such use of the dam and right to flow, would preclude the respondents from obtaining a prescriptive right to flow them. This argument assumes, if one person has by grant or license obtained an easement or servitude in the land of another, for a particular purpose, that a third person may not by prescription obtain a right to an easement in the same land, for a different purpose. The fallacy of the argument, is found in its application of the terms uninterrupted and exclusive to the whole flowing of water upon the land, and not to the particular flowing or use of the jand, by the respondents. The question is not, whether the respondents alone or exclusively had caused the land to be [400]*400flowed, but whether they had flowed it for a particular purpose, without interruption by the owners of the land, and excluding them from interference with such flowing.
Prescription rests upon the presumption of a grant, which has been lost. The owner of land may grant to one person a right to flow his lands, for the purpose of floating timber, and to another the right to flow the same lands for the purpose of working mills. If one has lost his deed containing the grant, and can prove, that he has exclusively and without interruption exercised the right of flowing for his purpose, for more than twenty years, he will not lose it, because it can be shown, that the other has retained and can produce his deed granting to him a right to flow the land for his own purposes. The right of Walker and others, to flow the lands for floating timber, could not prevent the respondents from acquiring a prescriptive right to flow them for the purpose of working their mills. In the case of Kent v. Waite, 10 Pick. 138, the opinion of the Court slates, “ different persons may have a right of way over the same place by different titles, one by grant, another by prescription, and a third by custom ; and each must piead his own title, and if he proves it, it is sufficient, although he may also prove a title in another, provided the titles are distinct and not inconsistent.”
Nor would the interruption of the use of the water for working the mills during some weeks of each year, occasioned by its use for floating timber, prevent the respondents from obtaining a prescriptive right to its use for their own purposes subject to that interruption. It would only show, that their right to its use was a qualified one. In the case of the Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 241, it was decided, that a right to the use of water in a trench or canal from Mashapog brook to Steep brook, might be acquired by prescription, subject to an interruption by third persons, for an indefinite portion of each year. The argument therefore, that “ the occupation of Brigham during a portion of every spring was interrupted, the continuity of that occupation broken,” cannot prevail.
[401]*4012. Another position presented in argument is, “ a complaint for flowing must be brought against the owner of the dam.”
“ Hence, while Walker and others owned and occupied the dam and also the right to flow acquired by deed, the defendants could not be acquiring any right to flow. No complaint could be maintained against them.” The position that a complaint could be maintained only against the owner of the dam is not correct.
The statute of Massachusetts, passed on February 27, 1796, provided, “ it shall be lawful for the owner or occupant of such mill to continue the same head of water to his best advantage,” and the verdict and judgment founded upon a complaint for flowing £! shall be the measure of the yearly damages, until the owner or occupant of such mill, or the owner or occupant of such lands, so flowed, shall on a new complaint” “ obtain an increase or decrease of said damages.” The act of February 8, 1821, c. 45, in all the sections giving the right to flow and authorizing the process, speaks of the owner or occupant of the mill, without using the word dam. The ninth section speaks of the owner or occupant of the dam. Hence it was stated in the case of Nelson v. Butterfield, 21 Maine, 237, “ the owner or occupant of the mill, for the use of which the water is raised, is by the statute made liable for the payment of the damages. And the ninth and tenth sections of the act would seem to require such a construction, as would make the owner or occupant of the milldam, which raised the water for the use of the mills, also liable.” The case of Lowell v. Spring, 6 Mass.
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The opinion of the Court was by
Shepley, C. J.
The process is a complaint for flowing lands. The defence is a right acquired by prescription to flow them without compensation. A verdict was found in favor of the respondents under instructions which are alleged to have been erroneous. The more important positions presented in argument by the counsel for the complainant, deserve consideration.
1. The first has reference to the conveyance or lease made on January 14, 1822, by Artemas Brigham to Joseph Walker. The jury were instructed that it “ would not prevent the owners of the mills from acquiring a right to flow the lands, by the flowing as before stated for more than twenty years.” The argument is, that by implication it granted the right to build a dam upon the lands of the grantor, and to flow them for the purpose of floating logs from Crotched pond to Long pond.
It recites, that Walker is about to make a canal from Crotch-ed pond to Long pond, for the purpose of slipping timber from one of those ponds to the other; that Brigham is the owner of land in and adjoining the natural stream, which empties the waters of one pond into the other, which will be necessary to be had for the aforesaid purpose.
Brigham leases to Walker “ so much of my said land at and adjoining said stream of water, as shall be found necessary and convenient for him or them to use and occupy for the purpose of making and using a canal, for the object and use aforesaid, and for no other purpose.” Nothing can be considered as [399]*399granted by implication, which is not necessary or convenient for making and using the canal. A supply of water would be necessary for its use, but it would not be necessary, that it should be supplied by the erection of a darn or feeder, upon the lands of the grantor.
The grant of lands, “ for making and using a canal,” is quite different from the grant of lands, for the erection of a dam to raise a head of water, to supply the canal. The right to occupy land to make and use a canal, and the right to occupy it, to raise a head of water to. feed it, are so different, that the one does not by implication or otherwise in the ordinary use of language, or in the construction of such improvements, include the other. A canal may be made and used across the land of a person without injury to his lands, not within the line of the canal and pathway adjoining it. If a grant of land to make and use a canal were to be considered as conveying by implication the right to do all that might be necessary or convenient to procure and continue a supply of water for its use, the grantor might find the value of his estate materially lessened without being aware, that he had in any manner yielded such a right.
If the construction insisted upon were conceded, the conclusion deduced in argument from it, could not be sustained. That appears to be, that Walker owning and occupying the dam, rightfully to float timber and thereby acquiring the right to flow the lands owned by the complainant, such use of the dam and right to flow, would preclude the respondents from obtaining a prescriptive right to flow them. This argument assumes, if one person has by grant or license obtained an easement or servitude in the land of another, for a particular purpose, that a third person may not by prescription obtain a right to an easement in the same land, for a different purpose. The fallacy of the argument, is found in its application of the terms uninterrupted and exclusive to the whole flowing of water upon the land, and not to the particular flowing or use of the jand, by the respondents. The question is not, whether the respondents alone or exclusively had caused the land to be [400]*400flowed, but whether they had flowed it for a particular purpose, without interruption by the owners of the land, and excluding them from interference with such flowing.
Prescription rests upon the presumption of a grant, which has been lost. The owner of land may grant to one person a right to flow his lands, for the purpose of floating timber, and to another the right to flow the same lands for the purpose of working mills. If one has lost his deed containing the grant, and can prove, that he has exclusively and without interruption exercised the right of flowing for his purpose, for more than twenty years, he will not lose it, because it can be shown, that the other has retained and can produce his deed granting to him a right to flow the land for his own purposes. The right of Walker and others, to flow the lands for floating timber, could not prevent the respondents from acquiring a prescriptive right to flow them for the purpose of working their mills. In the case of Kent v. Waite, 10 Pick. 138, the opinion of the Court slates, “ different persons may have a right of way over the same place by different titles, one by grant, another by prescription, and a third by custom ; and each must piead his own title, and if he proves it, it is sufficient, although he may also prove a title in another, provided the titles are distinct and not inconsistent.”
Nor would the interruption of the use of the water for working the mills during some weeks of each year, occasioned by its use for floating timber, prevent the respondents from obtaining a prescriptive right to its use for their own purposes subject to that interruption. It would only show, that their right to its use was a qualified one. In the case of the Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 241, it was decided, that a right to the use of water in a trench or canal from Mashapog brook to Steep brook, might be acquired by prescription, subject to an interruption by third persons, for an indefinite portion of each year. The argument therefore, that “ the occupation of Brigham during a portion of every spring was interrupted, the continuity of that occupation broken,” cannot prevail.
[401]*4012. Another position presented in argument is, “ a complaint for flowing must be brought against the owner of the dam.”
“ Hence, while Walker and others owned and occupied the dam and also the right to flow acquired by deed, the defendants could not be acquiring any right to flow. No complaint could be maintained against them.” The position that a complaint could be maintained only against the owner of the dam is not correct.
The statute of Massachusetts, passed on February 27, 1796, provided, “ it shall be lawful for the owner or occupant of such mill to continue the same head of water to his best advantage,” and the verdict and judgment founded upon a complaint for flowing £! shall be the measure of the yearly damages, until the owner or occupant of such mill, or the owner or occupant of such lands, so flowed, shall on a new complaint” “ obtain an increase or decrease of said damages.” The act of February 8, 1821, c. 45, in all the sections giving the right to flow and authorizing the process, speaks of the owner or occupant of the mill, without using the word dam. The ninth section speaks of the owner or occupant of the dam. Hence it was stated in the case of Nelson v. Butterfield, 21 Maine, 237, “ the owner or occupant of the mill, for the use of which the water is raised, is by the statute made liable for the payment of the damages. And the ninth and tenth sections of the act would seem to require such a construction, as would make the owner or occupant of the milldam, which raised the water for the use of the mills, also liable.” The case of Lowell v. Spring, 6 Mass. 398, does not decide otherwise. The complaint was brought against the owner of the dam, and the Court, therefore, only spoke of the owner of the dam. A complaint could therefore have been maintained against the respondents as owners of the mills, for flowing the lands, or against them as occupants of the dam for the purpose of working their mills. The fact that the dam was owned by another would have been no excuse or justification. That it was occupied to raise a head of water for the use of the mills would be sufficient to render the owners liable. A plea by the respondents, that Walker and [402]*402others were the owners of the dam and were rightfully entitled to flow the lands for the purpose of floating timber, could afford them no protection. Such a plea would clearly be bad.
3- It is contended, that no prescriptive right to flow the lands, could be acquired, because the flowing was occasioned by two dams built by different persons, and because the flowing was occasioned differently by the different dams. If, as has been already shown, a mill owner may be liable for damages, by malting use of a dam owned by another to raise a head of water to work his mill, it will be unimportant, that the dams were built by different persons or owned by different persons. Nor can it be material in what manner the flowing was occasioned, if it were for the working of the mills, and the lands were flowed to the extent required. If the question presented, were, whether the respondents had acquired a right to maintain a dam in a particular place, the fact, that it had been kept up in different places, might be material. The question here presented, has no reference to the particular location of the dam, or to the persons by whom it was built. It has reference to the use of the water flowed to a certain height and continued for a certain time, during each season for the working of mills, whereby the lands were flowed and injured. The positions assumed in argument, do not appear to be fully sustained by the facts reported. The water, so far as it was obstructed by the dam last built, was obstructed by it thirty feet above the place, where it was obstructed by the former dam, while the actual obstruction, which caused the water to flow back upon the land, was at all times, during the existence of each.dam, the same. The case finds, that it was occasioned by the flume, which had never been altered. That, which caused the water to flow for the use of the mills, was at all times the same and situated in the same place. Both dams were occupied by the owners of mills, as means to gather the waters into that place for the use of the mills.
4. It is insisted, that the instructions were erroneous, because they did not require the jury to find, that the flowing -was adverse, exclusive, and uninterrupted. The value of in[403]*403structions consists in the presentation of the particular points in contest clearly, unincumbered by other considerations, with the testimony directly applicable to them. When the question is, whether a right to flow has been obtained by prescription, and one part of the definition of a prescription is so necessarily involved in the inquiry, that it is not alluded to as matter of contest or investigation, it would be quite useless, and only suited to introduce obscurity, to proceed in a formal manner to define a prescriptive right, or to declare how it could be acquired. No point appears to have been made, nor any testimony to have been introduced to prove, that the flowing occasioned by the owners of mills, was or was not adverse. The fact, that it was done without the exhibition of any grant or license from the owners of the lands, and that their lands were thereby damaged, precluded all formal consideration of its adverse character. The jury were required to find, that the flowing occasioned damages during each season, of more than twenty years, which must necessarily exhibit the exercise of an adverse claim of right, when no grant or license was offered or pretended. If there had been any controversy respecting it, and the charge had omitted to notice it, the counsel should have requested instructions upon it.
The instructions requiring the jury to find, that the owners of the mills had caused the lands to be flowed as high and to as great extent, for more than twenty successive years, as they had been for the last three years, necessarily required them to find, that there had been no interruption to the enjoyment ot the right asserted.
The word exclusive, when used with reference to the acquisition of such a right, can only mean, that the enjoyment of the easement as claimed, whether it be a limited or more general enjoyment, should exclude others from a participation of it. It is in this sense, that it is used in the cases cited. That the enjoyment by those claiming a prescriptive right should not be an enjoyment by them and others, strangers to them and to their claims. The instructions did require, that the enjoyment should be exclusive, in the sense in which that term [404]*404can be applicable, that is, that it should be by the mill owners, and not. by them and other persons. The jury were required to find, that the mill owners had caused the land to be so flowed.
Perhaps the best test, of what is by law required to establish a prescriptive right to an easement, is a good special plea setting forth such a right in bar of an action. The terms adverse, exclusive and uninterrupted, so much insisted upon in argument, to show that the instructions were defective or erroneous, will not be found in the best precedents for such pleas. 2 Chitty’s Pl. 518, 561, 563, 569, 573; Stennel v. Hogg, 1 Saund. 222; Potter v. North, idem. 348; Mellon v. Walker, 2 Saund. 1. The instructions required that the jury should find facts sufficient to have sustained such a special plea. And yet there is no doubt, that the terms insisted upon are appropriate to ascertain, whether a prescriptive right has been acquired; when they are not necessarily included in the facts found, and are material points of contest, they should receive attention. In the present case the complainants do not appear to have been aggrieved, by the omission to use either of those terms in the instructions. Judgment on the verdict.