Ellsworth, J.
This is a bill in chancery to establish in the plaintiff a right to maintain a certain dam upon the land of two of the defendants; likewise to flow their land, and the land of others of the defendants. The case discloses that the plaintiff owns a quarter of an acre of land, and a shop, which he purchased of Horace Johnson, by deed, dated the 4th day of October, 1853, which land and shop, Johnson purchased of William W. Giddings and Alden Giddings, in the April preceding ; both deeds make use of the same language in describing the premises. It is worthy of note, that the deed to the plaintiff has in it the further words, “ being the same land, all the same, and none but the same, that was deeded to me by William W. Giddings and Alden Giddings, by their deed of April 5th, 1853.” Both deeds give the exact lines and visible boundaries of the grant, with unusual minuteness and particularity; and it is obvious, that when the plaintiff purchased, and when his grantor, before him, purchased, the premises were examined, or were already well known and understood by the parties. There is not a word in the deeds about drain, or right of flowage, and as these easements were, and must have been seen to be, without the limits and boundaries mentioned, it would seem that the plaintiff must have seen, that he did not acquire, by any specific description in the deed, the rights he now demands, but that he expected to obtain them, from some other quarter. The [546] deed, too, is with easements, but the land and shop alone are specifically mentioned. The word appurtenances, is in the subsequent and printed part of the deed, and may have its proper effect, and were it agreed as correct in law, that this word was enough to carry, along with the land, the artificial easements enjoyed at the time, in connexion with it, it is by no means certain, that it would include any more, or other easements, than the grantor was legally entitled to, as connected with the thing specifically granted. The word, appurtenance, does not necessarily define the exact measure or extent of the thing, said to be appurtenant; and as under the leases, there existed legal appurtenances, we are not prepared to say that the word appurtenance, merely, following a specific grant, as in this instance, can be construed to embrace any thing' more than that legal appurtenance. Manning v. Smith, 6 Conn. R., 291. 3 Cru. Dig., 47, § 51. Whaley v. Thompson, 1 B. and P., 371. Grant v. Chase, 17 Mass., 443.
The dam stood on the land of Michael Seymour and Wooster B. Seymour, and it set back water upon their land, and the land of Sylvester Seymour, and Jabez W. Giddings. The question now is, how have these persons lost the use of their land, and by what means, and principles of law, has the plaintiff acquired the easements he claims. The statutes of the state prescribe a mode of acquiring such rights, to which we naturally look, when such rights are claimed, but no deeds, or leases, are set up, or pretended by the plaintiff, nor a title by possession, nor any title whatever by conveyance, but only that these land owners are estopped from claiming their own property; not that they have been paid any thing, but such are the circumstances in the case, such the acts of the plaintiff and the silence of the defendants, that it would be a fraud in the defendants now to come forward and claim their lands, after what has openly taken place. Such a right to another man’s farm, all will agree, should be clearly and satisfactorily made out or be abandoned ; every [547] presumption of law, and of fact, is against it, especially when mere silence is the circumstance to conclude the party, as in this case. Silence, at the best, in relation to the use and occupation of real estate, as a ground of title by estoppel, is very unsatisfactory, and objectionable, if the doctrine of estoppel be allowed in such case at all. The rale is laid down in Pickard v. Sears, 6 Adol. and EL, 469, in a manner as satisfactory as in any other case, or in any treatise. In substance it is this: if a party wilfully misrepresents a state of things, and induces another to act upon a belief in the truth of his representation, and that person does so act upon it, to his prejudice, the party who makes the representation is estopped from proving the truth; it is a bar to the evidence being received and acted upon. But this, as has been said of all estoppels, is odious, and the conditions, which warrant its application, must be clearly proved. The misrepresentation must be, if not absolutely wilful, grossly careless and culpable, and intended to induce the other to act upon it to his prejudice, and the other must have acted upon it to his prejudice. We refer further to Howard v. Hudson, 20 E. L. and Eq., 52. Freeman v. Cook, 2 Exch., 654, and the numerous cases in our own reports, where this doctrine has been most largely discussed, and repeatedly decided.
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Ellsworth, J.
This is a bill in chancery to establish in the plaintiff a right to maintain a certain dam upon the land of two of the defendants; likewise to flow their land, and the land of others of the defendants. The case discloses that the plaintiff owns a quarter of an acre of land, and a shop, which he purchased of Horace Johnson, by deed, dated the 4th day of October, 1853, which land and shop, Johnson purchased of William W. Giddings and Alden Giddings, in the April preceding ; both deeds make use of the same language in describing the premises. It is worthy of note, that the deed to the plaintiff has in it the further words, “ being the same land, all the same, and none but the same, that was deeded to me by William W. Giddings and Alden Giddings, by their deed of April 5th, 1853.” Both deeds give the exact lines and visible boundaries of the grant, with unusual minuteness and particularity; and it is obvious, that when the plaintiff purchased, and when his grantor, before him, purchased, the premises were examined, or were already well known and understood by the parties. There is not a word in the deeds about drain, or right of flowage, and as these easements were, and must have been seen to be, without the limits and boundaries mentioned, it would seem that the plaintiff must have seen, that he did not acquire, by any specific description in the deed, the rights he now demands, but that he expected to obtain them, from some other quarter. The [546] deed, too, is with easements, but the land and shop alone are specifically mentioned. The word appurtenances, is in the subsequent and printed part of the deed, and may have its proper effect, and were it agreed as correct in law, that this word was enough to carry, along with the land, the artificial easements enjoyed at the time, in connexion with it, it is by no means certain, that it would include any more, or other easements, than the grantor was legally entitled to, as connected with the thing specifically granted. The word, appurtenance, does not necessarily define the exact measure or extent of the thing, said to be appurtenant; and as under the leases, there existed legal appurtenances, we are not prepared to say that the word appurtenance, merely, following a specific grant, as in this instance, can be construed to embrace any thing' more than that legal appurtenance. Manning v. Smith, 6 Conn. R., 291. 3 Cru. Dig., 47, § 51. Whaley v. Thompson, 1 B. and P., 371. Grant v. Chase, 17 Mass., 443.
The dam stood on the land of Michael Seymour and Wooster B. Seymour, and it set back water upon their land, and the land of Sylvester Seymour, and Jabez W. Giddings. The question now is, how have these persons lost the use of their land, and by what means, and principles of law, has the plaintiff acquired the easements he claims. The statutes of the state prescribe a mode of acquiring such rights, to which we naturally look, when such rights are claimed, but no deeds, or leases, are set up, or pretended by the plaintiff, nor a title by possession, nor any title whatever by conveyance, but only that these land owners are estopped from claiming their own property; not that they have been paid any thing, but such are the circumstances in the case, such the acts of the plaintiff and the silence of the defendants, that it would be a fraud in the defendants now to come forward and claim their lands, after what has openly taken place. Such a right to another man’s farm, all will agree, should be clearly and satisfactorily made out or be abandoned ; every [547] presumption of law, and of fact, is against it, especially when mere silence is the circumstance to conclude the party, as in this case. Silence, at the best, in relation to the use and occupation of real estate, as a ground of title by estoppel, is very unsatisfactory, and objectionable, if the doctrine of estoppel be allowed in such case at all. The rale is laid down in Pickard v. Sears, 6 Adol. and EL, 469, in a manner as satisfactory as in any other case, or in any treatise. In substance it is this: if a party wilfully misrepresents a state of things, and induces another to act upon a belief in the truth of his representation, and that person does so act upon it, to his prejudice, the party who makes the representation is estopped from proving the truth; it is a bar to the evidence being received and acted upon. But this, as has been said of all estoppels, is odious, and the conditions, which warrant its application, must be clearly proved. The misrepresentation must be, if not absolutely wilful, grossly careless and culpable, and intended to induce the other to act upon it to his prejudice, and the other must have acted upon it to his prejudice. We refer further to Howard v. Hudson, 20 E. L. and Eq., 52. Freeman v. Cook, 2 Exch., 654, and the numerous cases in our own reports, where this doctrine has been most largely discussed, and repeatedly decided.
Let us now turn our attention to the facts and circumstances which are claimed to justify the application of this doctrine to these defendants. At the time William W. Giddings and Alden Giddings made the dam in question, knowing they had no right to use the land lying without the limits of their said quarter of an acre, they got leave of Michael Seymour and Wooster B. Seymour, who owned, and still own the land, where the dam was placed, to build their dam there, and flow their land,-during the pleasure of the parties, by paying them the annual sum of seven dollars ; and a like agreement was made with Sylvester Seymour, for the use of his land, at the same rent. When William W. Giddings, and Alden Giddings, sold to Johnson, the plain[548] tiff’s grantor, in April, 1853, they distinctly told him, under what leases they had enjoyed their water power, and informed him that he could have the same rights renewed to him, by paying the same rent, and William W. Giddings said that he would himself get leases from them for ninety-nine years, and likewise from Jabez W. Giddings, who had now become a proprietor of some of the land which was flowed. Leases were given for ninety-nine years, by said Wooster B. and Jabez W., to Johnson, bearing date the 11th of April, 1852, and whether Michael Seymour, or Sylvester Seymour, gave leases, does not appear, nor whether they objected to Johnson’s flowing their lands, under the verbal agreements with William W. Giddings, and Alden Giddings, and they had never expressed a wish to put an end to those parol leases. When, after all this, Johnson came to sell the premises to the plaintiff, he described the entire subject matter with the exactness and particularity already mentioned, saying not a word in the deed about a privilege on other persons’ lands. Now, the record finds, that whatever the defendants knew of the plaintiff’s view, or belief, (upon which he now claims the estoppel,) as to his title or rights when he bought, or afterward, while he was expending his money, it was known by the defendants, in the language of the report, as follows: “ All which was well known by the respondents, agreeably to the contracts and agreements entered into by, or between, the said Johnson and the other respondents, or either, or any of them, and said Johnson and the petitioner, as found in their report.” Our interpretation of this language of the report is, that the plaintiff, at the time he purchased the premises of his grantor, Johnson, was informed of the character and limit of Johnson’s right, as one in fee only of the land described in the deed, with the leases to flow other lands, at an annual rent. At any rate, we see nothing here, upon which to build the doctrine of estoppel. And we are more inclined to this opinion, from what we have already stated, that the plaintiff must have known that his deed was a barren [549] grant of a specific piece of land, or quarter of an acre, and no more, so far as the lines and boundaries are to speak of the things granted. We are by no means satisfied that, during all the time, the defendants did not truly believe, that their leases were binding and operative, and that the plaintiff wished it to be so, and so understood it, and hence knew of no occasion to speak to the plaintiff, when they saw him repairing his dam, and fitting the shop and machinery for his uses.
Much has been said about an equitable estoppel in this case; that it would be unjust, and fraudulent, in the defendants, after what the plaintiff has done for them, to insist upon their legal rights by removing the dam. This whole doctrine of equitable estoppel by matter in pais, when applied to real estate, the title to which is matter of public record, is to be considered, and applied, with extreme care, and caution. It may be applied, we allow, in a perfectly clear case, as where, to let in the truth would operate as a palpable, if not a meditated fraud, but it must be a clear case indeed, much more so than the one now before the court, for here the application of the rule would only protect the careless, the indolent and the presumptuous, to the injury of those who were fairly and justly relying upon their clear and undoubted rights. The very decree, itself, shows the misapplication of the doctrine contended for, for wherein is it inequitable, and fraudulent, for the defendants to assert their rights to their lands, if it be true that the plaintiff was flowing their lands by license, or under leases, which the plaintiff will not keep, but repudiates, and by so doing, has brought on himself the destruction of which he complains,— which leases the decree establishes as correct, and requires the plaintiff to conform to, and pay the annual rent for ninety-nine years.
The decree is inconsistent on its face, since it confirms the leases, and it finds matter for an equitable estoppel against the defendants, as if they had no existence.
[550] Under these circumstances, we are satisfied that the plaintiff ought to be considered as holding no rights over the lands of the defendants, but what he holds under, and according to, the leases, and as he refused to pay the rent when it was due, and demanded, and this refusal was continued after the time allowed for payment, the lessors and owners of the lands had a right to resume possession of their own, and had full right, themselves, or by the assistance of others, to remove the dam, which was a nuisance.
We do not see the propriety of making Sylvester Seymour, and Wooster B. Seymour, and Johnson, defendants, under any view of this case. Since the first two have done nothing to injure the plaintiffs, and have threatened nothing, there can be no decree, of course, against them. Nor has Johnson any connection with the controversy whatever, nor is he liable to any one, so far as we perceive; if he is, the remedy against him would be at law, for damages.
There is manifest error.
In this opinion, the other judges, Storrs and Hinman, concurred.
Decree reversed.