Swift, Ch. J.
By the common law, every person owning lands on the banks of rivers, has a right to the use of the water in its natural stream, without diminution or alteration ; tli«1 is, he has a right that it should flow, ubi currere snlrbut; and if any person on the river above him, interrupts,, or [591]*591diverts, the romse of the water, to las prejudice, action will lie. Tliis-will give to every one all the advantage lie can derive from the water, whirl) does not injure the proprietor of lands on the river below him.a■''Hut a special right, different from the general one, may be acquired by an adjoining proprietor, by grant, or by such lengtfi of time as w ill furnish presumptive evidence of a grant. In England, it has been derided, that twenty years exclusive enjoyment of water in a particular manner, affords a conclusive presumption of a right in the party enjoying it, derived from some individual having the power to make it, or from the legislature ; and in this state, fifteen years exclusive enjoyment will furnish the same evidence. Such exclusive right, however, must, be measured and limited by the extent of its enjoyment, and the occupier can no more enlarge it than he can assume a new right. These principles are fully settled in the case of Brown v. Best, 1 Wils. 174. and Bealey v. Shaw, 6 East, 208. A different doctrine has been holden in this state. Perkins v. Dow, 1 Root 535. 537. It has been decided, that the proprietors on the stream above might take any advantage of the water, provided they did not deprive the proprietor below of the necessary use for his kitchen and cattle. In the case of Howard v. Mason, 1 Root 537. it was decided, that a man may divert a stream of water to manure and enrich his meadow, to the prejudice of a mill that had been erected on the stream below, more than twenty years. This is reversing the common law ; and not only gives to the upper proprietors on rivers, the advantages to which the lower are entitled, but denies that even seventy years exclusive enjoyment of w ater in a particular manner, will confer an absolute right. This last doctrine was over-ruled by the case of Sherwood v. Burr & al. 4 Day 244. The plaintiff had erected a mill more than forty years ago, which had ever since been in Constant use. The defendants had erected a mill below, on the same stream, more than eighty years ago, but w ithin ten years liad raised their dam so as to How the water back on the wheel of the plaintiff’s mill, and prevent its being used. It was decided, that the plaintiff, by his exclusive enjoyment, for more than fifteen years, had obtained an absolute right to the use of the stream for his mill : and that the defendants had no right to raise their dam to his prejudice. This decision will Hearlv warrant the principle [592]*592laid down at the circuit, in this case, that when a man has erected a mill and dam on a river, and has occupied it, without interruption, for more than fifteen years, he acquires an exclusive right, and no one may erect a dam on the same river, above or below such mill, in such manner as to diveri or obstruct the water, to the injury of such mill.
It is, however, contended, by the counsel for the defendant, that to gain such exclusive right by possession, it must be adverse to the claim of the person to be affected by it, so thai he could maintain a suit; otherwise, there is no acquiescence ; and that, in this case, there was no such adverse possession. But the rule is laid down without such qualification ; the exclusive enjoyment alone is sufficient to create the right. In the case of Sherwood v. Burr & al. the defendants could never have maintained an action ; for the dam of the plaintiff was no injury to them : yet the court held the possession to be sufficient to gain an absolute right.
In this opinion, Trumburl, Edmond, Smjth, Brainabd, Hosmer and Chapman, Js. concurred ; the two latter,-solely on the authority of Sherwood v. Burr & al.
Gourd, J.
As at present advised, I think, that the jurj were misdirected, and that there ought to be a new trial. If there were other members of the court entertaining doubts upon the question, I should be desirous of further time for deliberation ; but as the opinions of my brethren are settled, I should not wish to delay the decision, for the mere purpose of maturing my own.
As easements, and incorporeal interests, are not within the statute of limitations; courts of justice have virtually extended the benefit of that statute, to those who have been long in the exercise, or enjoyment, of such rights, or interests, by the application of the doctrine of presumption : a doctrine, founded in sound policy, and of great practical convenience. And though the principle of quieting long possession lies at the foundation of this doctrine ; it must, still, have some limit, and be governed by some definite principle. It has, therefore, been framed, and wisely framed, in strict analogy to the statute of limitations, or, as is sometimes expressed, in imitation of that statute. And according to my present view of tho subject, a presumption [593]*593from lapse of time, cannot, on principle, be conclusive upon incorporeal rights, except in circumstances, in which the statute would bar the possessory title to corporeal hemliia-menta. But the statute never operates, as a bar to a right, once existing, except where one is wrongfully muled of his possession, and voluntarily acquiesces its the wrong, for twenty years, under the English statute, or iifteen, under ours, iri other words, there must have been a usurpation of right, by one party, to the injury of the other, and for which the latter might have maintained an action, before the expiration of the term, prescribed in the statute ; or the original right is not barred. Hence, though the ouster of a particular tenant, for twenty years, or more, is a bar to his right of entry ; it is not so to him in remainder, or reversion ; since the wrong was one, of which Ae could not complain, during the continuance of the particular estate. And in the case of Bradbury v. Grinsell, (Mich. 41 Geo. 3. K. B.) the same distinction was applied to the case of an easement, even after an uninterrupted enjoyment of it for fifty-two years, upon lands in the possession of particular tenants, 2 Wins. Sound. 175. d. notis. The reversioner, in that case, Was hidden nol to be affected by this great length of enjoyment, because he had not acquiesced in any violation of his own rights. AVIien, on the contrary, the enjoyment of an easement, or of any incorporeal thing, must, if unaccompanied with title, have been an infraction of another’s right ; the voluntary acquiescence of the latter, for fifteen years, furnishes presumptive evidence of a grant, or agreement, legalizing such enjoyment. For it is a fair presumption, that no one would voluntarily, and gratuitously submit, for such a period of time, to a continued trespass, or other infraction of his legal rights. In such cases, therefore, there is a reasonable foundation for the presumption of a grant. Upon this principle it is, that one may, by length of adverse user, acquire a right of way, over the hind of another, to divert a natural stream from it, or to overflow it, \
But where such enjoyment, by one party, has occasioned tio injury, or inconvenience, of which the other could have complained, there is no such acquiescence, by the latter, as to raise any presumption whatever j no acquiescence, in a sense, v. implies submission to a violation of his own rights : and hi? silence, or inaction, cannot, therefore, upon any [594]*594principio, I think, be construed into a presumption of his having granted away, or abandoned, any of them.
The doctrine laid down by the Chief Justice of this Court, in Chalker v. Dickinson, 1 Conn. Rep. 382., and in which alt the Judges, who gave opinions in that case, concurred, is, as I understand it, strictly conformable to these principles. It is said, in that opinion, “ easements may be acquired by uninterrupted possession for fifteen years ; such as rights of way, &c. But in every case of this description, the use and possession, in the first instance, are a usurpation of the rights of some other person ; and an action would always lie, till the fifteen years were elapsed.” This language expresses, very exactly, my present view of the subject.
If I could regard the determination in Sherwood v. Burr, as in point, for the plaintiffj I might feel myself bound by thqt decision : but I cannot so consider it. In point of precedent, that case does not, in my judgment, compare with the present ; and the reasoning of the Chief Justice, in delivering the opinion of the Court, was, substantially, conformable to the principles I have just advanced. My reason for considering the cases unlike, in point of precedent, is, that the former did not, according to my view of it, depend at all upon length of enjoyment, nor, of course, upon the doctrine of presumption. The plaintiff, in that case, having liad, confessedly, an original and natural right to use the stream, as he had done, the casting hack of the water upon his wheel, was an injury, for which he might have recovered, if his mill liad then stood but a year, or a day. And the opinion of the Court recognizes the necessity, (in order to found a presumption from length of enjoyment) of a possession “ adverse and exclusive,” in analogy to the statute of limitation j and this analogy requires, as I have remarked already, that the defendants should have voluntarily acquiesced in a violation of their rights.
Now, in the present case, the parties, or those under whom they respectively claim, had, originally, a natural and equal right to the use of the stream in question. If the defendant had diverted the stream from the plaintiff’s land ; or if the plaintiff had, by obstructions, cast it back, and overflowed the land of the defendant; and the injury had been acquiesced in, for fifteen years, on either side ; a grant might now be presumed, in favour of one, or the other, of the parties. [595]*595And the same thing might be said of any wrong, in general, of the same continuance, on one side, submitted to, on the other. But no such case as this is before us. The use, which the plaintiff lias made of the stream, has been neither a legal injury, nor an inconvenience of any kind, to the defendant. It was nothing, of which the defendant had any right, to complain. He has, therefore, acquiesced in no usurpation of his rights ; and has been guilty of no neglect, in not asserting them sooner. For it would seem extraordinary, to charge a man with neglect, for omitting to seek redress, where there is no wrong ; or for not complaining, where there is no ground of complaint. And the only principle, upon which the defendant can be supposed to have forfeited his natural right to use the stream in question, as he now does, must be, that he did not build his mill, within the fifteea years, whether it would, then, have been of any use to him, or not — and whether he was in a condition to build it, or not.
And what, on the other hand, is the injury of which the plaintiff complains ? It is not, that the stream has been diverted from his mill. If this had been done, he would, undoubtedly, have a right of action, whether his mill^ stood fifteen years, or but one year. But the water transmitted to him, in its natural channel ; and ⅞ wnl wrong complained of is, that part of it is interrupte course, and delayed in arriving at his wheel. Thisp brings the case directly within that of Palmer v. Mertigon, 3 Caines 307.; a case, in which it was expressly decided, (by divided opinion, it is true,) that under circumstances, prec like the present, such a temporary interruption of a stream, there being no diversion of it from the plaintiff’s mill, was not a ground of action. The case of Weston v. Alden, 8 Mass. Rep. 136. was determined by the Supreme Court of Massachusetts, upon the same principle. In that case, which was an action for diverting an ancient water-course from the plaintiff’s meadow, the defendant, who owned land above, upon the stream, had let the water out of its banks, into-sluices, to irrigate his own land, but returned it into its natural bed, before it reached the plaintiff’s meadow-; so that it still passed the plaintiff’s meadow, but in a quantity greatly-diminished, by absorption upon the land of the defendant, and evaporation : in consequence of which, the meadow of the plaintiff was greatly damaged. But though the plaintiff, and [596]*596those, under whom lit: claimed, luid before* from time imine-moiiul, liad the benefit of the undiminished stream, to ferti - lize. the meadow in question j the court held this interruption am! uimiuiüion of the stream, to he damnum, absque injuria.
Of the English cases, none, which have been cited for the plaintiff, are in point ; and from the short examination, 1 have been aide to give them, my first impressions are, by no means, weakened. The case of Bealy v. Shaw is wholly irrelevant to the present question. The plaintiff ⅛ right was not founded upon presumption, from length of time. Indeed, at the time of the injury complained of, he had used the water but twelve years : and his right of action would have been complete, if he had used if, but one year, or one hour. For the gravamen was the diversion of the water of a river, to the damage of the plaintiff's mills below ; and this was. confessedly, a violation of his natural right to the use of the stream, unless a right so to divert it, could be presumed, from the fact, that the defendants, and those under whom they claimed, had, for upwards of seventy years, diverted a smaller portion of the water. And the only point decided, upon the question of presumption, was, that a right, in the defendants, to divert the -whole stream, could not he presumed from their having, for any length of time, diverted a pa'rt of it. It is true, that the right of the defendants to divert that part of the water, w hich had been so long diverted, was admitted, on both sides, at the bar, as well as by the court; and upon the principle, for which I have contended, the right was, so far, undeniable. For no part of the water diverted, ever returned i.o its natural channel, till after it passed the plaintiff’s mills. The original diversion was, therefore, a plain act of usurpation, of which those who then owned the plaintiff’s land, might have complained, but in which they, and those claiming under them, had acquiesced, till it was too late to complain, (ireat stress has been laid, however, upon an observation of Lord EUenborough, in the last case, that “ twenty years’ exclusive enjoyment of the water, in any particular manner, affords a conclusive presumption of right, in the party so enjoying it.” But is it to be taken for granted, that this observation was meant to include an enjoyment, commencing, and continued, rightfully ? It was probably made with reference to the case then under consideration, or to that which had-been stated, by way of supposition, in the observation [597]*597immediately preceding : acaso, \⅜Itirii supposes the enjoyment to commence in usurpation. In the case of Healey v. Slant:, then, there is nothing* 1 trust* that can aid the plaintiff’s claim.
In Holcroft v. Heel, 1 Bas. & Pull. 400. it was decided, merely, that the grantee of a market, by acquiescing, for .twcnly years and upwards, in a disturbance of his franchise, loses his right to recover for the injury. The use of the defendant’s market, in that case, commenced in wrong, and the plaintiff submitted to it for twenty-three years. The case is, therefore, foreign to the present question.
The Nisi Frius case of Balston v. Bensted, 463 Campb. 463. was one, in which the defendant had cut off, upon his own land, and thus diverted, the subterranean flow of a natural spring of water? which issued above ground upon the plaintiff’s land, to the damage of his bath, reservoir, and mill, the former of w hich had stood upwards of twenty years. Now, the use whic h the plaintiff had made of the water, for this period, had not, I admit, affected any right of the defendant. And still, the rule of presumption, arising from the plaintiff’s length of possession, was applied, in deciding the case. But I am unable to perceive, why the plaintiff’s right to recover would not have been the same, if his works had been erected less tluyi twenty years, or had not been erected at all. For his natural right to the use of the spring was as absolute, I conceive, as if the water had flowed, in a rivulet upon the surface, through the defendant’s land, and his ow n ; in w hich case, the diversion of the water would lone hern an infraction of his natural right, though the diversion had commenced immediately after his title to the land accrued. This case, therefore, is not a precedent for the present.
In the single instance of obstructing what are called ancient lights, 1 acknowledge my inability to account, for the adjudged cases, by the distinction, which 1 have been endeav-ouring to maintain. Whether the English rule, in this class of cases, has ever been recognized, or brought under judicial consideration, in this country, I have been unable to learn. And I am by no means certain, that l fully understand the nature of those cases, to which the rule lias been applied, in the English courts. If, by lights, which are proferí; il against obstruction, by twenty j ears enjoj .nent, he mean! such . as project over the- land .of the adjoining proprietor; [598]*598tiie rases would fall directly within what I consider the. true principles of the rule of presumption. For such a projection won id be an invasion of the adjoining owner’s rights : Citjus cst solum, ejus est usque ad coelum. And I confess, I have sometimes suspected, that the cases, to which the rule is meant to apply, were of this kind : since l find in them, in repeated instances, the expressions, “ the windows were put <mi” at such a time — “ the lights were put out and enjoyed,” &c. 2 If Wms. Saund. 275. b. notis. 11 East, 372. In Daniel v. North, 11 East, 372. the windows in question are called “ the encroaching lightsand the adjoining tenant is represented, in the argument, as having been guilty of « laches, or acquiescence, in that, which was a prejudice to the inheritance.” Id. 373. And in the case of Dougal v. Wilson, the second action of the kind, I believe, of which we have any knowledge, Wilmot, Ch. J. speaks of the possession of windows, for a great length of time, as “ amounting to a grant of the liberty” (not of holding them free from obstruction, but) “ of making them,” or, to « evidence of an agreement to make them.” Now,the language used, in these instances, is to me hardly intelligible, except upon the supposition.» that the lights in question were, originally, encroachments.
But admitting this supposition to be, as it very probably may be, entirely groundless — I still cannot, for several reasons, regard this class of cases as governing the present. In the first place, supposing the lights, protected by the rule» not: to have encroached upon the adjoining proprietor — ■ nothing can be more unsatisfactory to my mind, than the reason, originally assigned for the rule, viz,, that as twenty years possession would give title in ejectment to a house; the owner ought not, after that length of possession, to he disturbed in the lights, belonging to it. But if, as I am now supposing, (and as must be assumed, to make out the necessary analogy, to the present case,) the house and lights were both, at first, exclusively upon, or over, the land of the owper of the house.; the same reason would protect the lights against obstruction, from the moment they were made : for he would certainly be entitled to the undisturbed occupation of the house, from the moment of its erection. Again: upon tiie present supposition, the rule, in the case of lights, is, I think, unquestionably anomalous; and therefore, not tobe extended by analogy. Besides: to what extent does this [599]*599privilege, or protection, go, where it actually exists? Does the adjoining proprietor lose all right to erect a building upon his own land, whenever it would, in the least degree, diminish the light of a privileged window? Is he precluded from building at the distance of three rods, or one rod, or even at a less distance, from his neighbour’s windows? I am not aware, that the rule was ever claimed to extend so far. It goes no further, as I understand it, than to protect windows, which have been long used, from being obstructed, or, as it is often expressed, in the hooks, “ stopped up.” To apply these cases, then, by analogy, to the present question, it would he necessary, that the defendant in this action should have diverted the stream, or, in some way, have deprived the plaintiff of the use of it. Whereas the complaint, here, is only of a temporary interruption of part of (he stream, the whole of w hich eventually passes by the plaintiff’s mill : an interruption, exactly similar to that in Palmer v. .Mertigon, and much less than that in Wes ton v. eliden; in both which eases, it was resolved, that the damage sustained was no legal injury.
One further consideration, which, though certainly' not conclusive in any case, is, at least, entitled to attention, lias some influence on my mind. The same state of facts, upon which we are now to decide, must, in ail probability, have occurred, in very numerous instances, long before this time, both in England, ami in this country. But it docs not appear, than an action has ever been sustained, in such a case.
Upon the whole, I ilrnl myself, at present, constrained ⅛ think, that the plaintiff has no cause of action.
Pktkrs, J. gave no opinion, having been formerly of counsel in the cause.
New trial not to be grantetL