Gerrish v. Clough

48 N.H. 9

Opinion

Sargent, J.

It is very well settled that land formed on one side of a stream of 'water by the variations in the channel, caused by the natural flowing of the water therein, belongs to the owner of the land on that side of the stream. These natural accretions are entitled to the same protection when once acquired that the original enclosure would have been. Either party may protect himself against any anticipated change of that kind by rubbling or securing his bank in any way that shall keep the channel in its present location, if he do not thereby injure or raise the water upon his neighbor's land, either above or opposite to him. Scratton v. Brown, 4 B. & C. 485; Rex v. Lord Yarborough, 3 B. & C. 91; Adams v. Frothingham, 3 Mass. 352; Rex v. Trafford, 1 B. & Ad. 874; Jones v. Soulard, 24 How. U. S. 41; Rix v. Johnson, 5 N. H. 520.

It is claimed that the doctrine of reasonable use should come in here, in the use of measures for self-protection, and the case of Bassett v. Salisbury Man. Co., 43 N. H. 569, 577, is cited as an authority. But that case evidently does not apply here. The reasonable use doctrine of that case was applied to percolation where there was no watercourse, and that case has no bearing on this case. The jury were instructed in that case, (p. 571,) that, if there was a watercourse on plaintiffs land, the defendants could not raise the natural level of the water in the watercourse on plaintiff’s lot, and so was the decision in Amoskeag Co. v. Goodale, 46 N. H. 53.

The doctrine of the right of reasonable use is applied to watercourses in a. class of cases, .as in Hayes v. Waldron, 44 N. H. 580; but in those cases the question arises between one riparian owner who uses the water of the stream as it passes through his land for some particular, purpose, and the riparian owners below him on the same stream. This distinction is noted in Bassett v. Salisbury Co., 578, where it is said that the views in relation to the right of reasonable use as above noticed, are not necessarily in conflict with the cases which hold that a riparian proprietor below has in general no right to raise the water of a stream above its natural level on land of a riparian proprietor above.

This doctrine of reasonable use as applied to watercourses, is applied, so far as we know, only to a use of the water in some ordinary and common sense. But in this case, defendant made no use of the water on his land, but was simply trying to prevent the water from destroying his land. Suppose the defendant owned the plaintiff’s land and (owning on both banks) he should build a dam across the river to prevent the river’s washing away his bank, and should thereby flow a piece of plaintiff’s land up the river, he would clearly be liable, according to Amoskeag Co. v. Goodale, and all the authorities. It could make no difference whether he built the dam to protect his land or saw logs.

Whatever his object he would have no-right to raise the level of the-river on plaintiff’s land up stream. The doctrine of reasonable use does not apply to a dam raising the height of the water above the dam. Now the plaintiff’s breakwater was a dam or in the nature of a dam. It makes no difference that it did not extend across the river. Many dams made for use extend only part way across the stream. It is immaterial whether the dam be long or short, whether it be a breakwater or any other obstruction. Its form, character and extent are of no account if it raises the height of the river on land of others above the obstruction. Suppose in clearing his land of stones the plaintiff dumps them into the river to get rid of them, thereby filling up and obstructing the channel of the river and thus raises the'water on land of others, he would be liable, and there would be no question of reasonable use, nor would it make any difference “whether the land flowed were ten rods above the obstruction or ten feet or one foot; nor would there be any difference in principle whether defendant owned the land on both sides of the stream at the place of the obstruction and the plaintiff’s land that was flowed was ten rods above, .or whether defendant owned but one bank of the stream and the plaintiff owned the other bank opposite, which was flowed in consequence of such obstruction.

The general rule would seem to be that whether a riparian owner uses the river or not, he cannot either in the use of .the. water or in the pursuit of any other object, raise the height of the water in the- river, on land of others above his obstruction. The instructions to the jury were substantially to that effect. "To turn the current of the river so as to throw it over on to the plaintiff’s land” is merely to raise the height of the water above its natural level on the plaintiff’s land, by defendant’s breakwater operating as a dam or an obstruction.

It would seem that a different rule had sometimes been applied, where the lands border upon the sea or ocean. In Rex v. Pegham, 8 B. & C. 355, it was held that all owners of lands exposed to the inroads of the sea, might properly erect such works as are necessary to protect their lands, although such works may cause the sea to flow with more force upon the land of another, than it would have done without such protection.

But the distinction between that case and the case of ordinary watercourses, is recognized in England as will be seen by the remarks of Lord Tenterden, O. J., in Rex v. Trafford, supra. He says, "it is a well known fact that the sea occasionally by .some change proceeding from natural and unknown causes makes gradual inroads on parts of a coast, which had been free from its waters for centuries. On such occurrences it has been compared, and justly compared, to a common enemy against which every person may defend himself as he can, but this is perfectly different from an occasional course of superabundant inland water,” &c.

In regard to ordinary watercourses, it seems well settled that a riparian proprietor, for his own protection or convenience, has no right to build an}’thing which in times of ordinary flood will throw the water on the grounds of another proprietor so as to overflow and injure them. One may protect his own property; but "though the river threatens to change its channel and to encroach upon your land, you cannot protect yourself to the prejudice of the opposite proprietor.” Angelí on Water Courses, see. 330 — 34, and cases cited.

We think the instructions were correct, and there must be

Judgment on the verdict.