Opinion,
Mr. Justice Clark :
The plaintiffs in this case, who are the executors and trustees under the will of Thomas Kent, deceased, represent the owners of the Union and of the Rockbourne Mills, the former on the north, and the latter on the south side of Darby creek, in Delaware county. The defendant is the owner of a mill below, on the same stream, and the complaint is, that the defendant’s dam backs the water of Darby creek into the tail-race of the plaintiffs’ mills, thereby impeding their successful operation.
Thomas Kent derived title to the Union Mills under the deed of Joseph Hibberd to Thomas Garrett, dated February 11, 1822, and to the Rockbourne Mills under deed of David Evans to Samuel Garrett, dated December 16,1831. Sellers Hoffman claims title to the land under Asher Lobb, whose title originated in a deed from John Davis dated April 1, 1799, and to the water right under Joseph Hibberd, who while he was the owner of the upper, and Lobb of the lower tract, by deed dated May 16,18Í2, granted to Lobb “ the right, liberty, and privilege of erecting a dam across Darby creek, and of abutting the same against the land of the said Joseph Hibberd and Hannah, his wife, in the township of Upper Darby aforesaid, at the large rocks next below the meadow formerly occupied by James Black, and raising and swelling the water of the said creek as [395]*395high as opposite a beech tree, corner of the lands of the said Asher Lobb and David Evans, and no higher.”
The rights of the respective parties, so far as they related to the raising of the waters of Darby creek by the defendant’s dam, originated in this grant. It seems, however, that about the year 1816, the extent of Lobb’s right came into dispute between Lobb and Evans; and they referred the matter to Joseph Ball, Oborn Levis and Thomas Steel, throe of their neighbors, who bored a hole in a rock in the bed of the creek, and fixed the centre of that hole as the proper height to which Lobb might raise the water.
In 1833, Thomas Garrett brought suit against Asher Lobb for raising the water and flooding his race; when that case came to trial in 1835, it seems to have been conceded that the water was raised higher than the hole in the rock, and higher than the defendant had any right to raise it; this dispute was settled, however, the defendant agreeing to pay a nominal sum, annually, “ for the use of the power of the waters ” of the creek between the centre of the hole in the rock and the height of the dam; “ the said dam, as soon as may be after the expiration of the said lease, to be so reduced that the water in the creek, at common water, shall come up to the centre of the hole in the rock made by Thomas Steel, Oborn Levis, and Joseph Ball, and no higher.”
In 1846, Charles Kelly, who was then the owner of the lower or Hoffman Mills, built a dam below the present site, for the purpose of retaining a larger supply of water, and at that time made some kind of a water mark in the rocks at the breast of the present dam, but this mark has disappeared. In 1873, the new dam was washed out, and was not rebuilt. The old dam was put in repairs, however; and was maintained until in 1877, when it was partially driven out, and was again repaired. This occurred again in 1881, and in 1882 the dam was restored, and has since remained.
The proofs would seem to show that the creek “ at common water ” is now about eight inches above the hole in the rock made in 1816 ; and the plaintiffs’ contention is that this is in excess of the defendant’s right, and that the water is backed up into the tail race of their mills, to their injury, etc.
The last adjustment of the defendant’s rights, therefore, [396]*396would seem to have been made in 1835, when it was agreed that the centre of the hole in the rock was the rightful and proper mark defining the height to which the waters of this dam, in the ordinary stages, might be raised; -and it is fair to infer that in 1836 the dam was adjusted to its proper height, as there seems to have been no complaint to the contrary, nor is it pretended otherwise. There certainly was no “ very serious dispute” between the parties from 1836 to 1873. In 1868, 1869, or 1870, Kent is said to have complained that the water was too high, and Kelly sent a man to see whether there was any cause for complaint; others heard there was some dispute about that time, as to the height of the water, but had no personal knowledge of the facts. It does not appear that there was any work done on the dam, or that the height of the water was increased by this or any other means during these years. There certainly was no interference with Kelly’s use of the .water; no suit was brought, no adjustment made; in fact, there was no evidence of any such dispute as could have had any effect whatever in this case. But, even if there had been evidence of this character, the court, when the jury was recalled, submitted that question in the fullest and fairest manner.
The defendant’s further contention is, that although the water in its ordinary stages, at the time of the bringing of this suit, was admittedly several inches above the centre of the hole in the rock, yet it was in fact no higher than it had at all times been since the agreement of 1835 ; that the rock was not permanent, and since that year had sunk or tilted over; and that the hole which was bored into it as a water mark does not represent the proper height to which the defendant, by the agreement of 1835, was entitled to maintain his dam. The defendant further contended that the present height of the water is the same as it was in 1836, and that it has since that time continuously, and 'without interruption, been so maintained, under adverse claim of right; and there was evidence adduced in support of both of these propositions. These questions of fact were, we think, carefully and accurately submitted to the jury, and the verdict must be taken to have established one or other of them in favor of the defendant.
The case of Gehman v. Erdman, 105 Pa. 371, is cited, as [397]*397distinguishing between the effect of the testimony as to the height of the water and the height of the darn, in controversies of this character. In that case, as we there said, “ the defendant contended, and called witnesses to show, that the dam was built in the year 1843, and that since that time, and for twenty-one years prior to the bringing of the suit, it had been maintained in precisely the same form, and to the same and no greater height; that the structure was identically the same, in all respects, at the time when the suit was brought, as it had been at any time during the twenty-one years prior to that time, and that this long-continued enjoyment of the easement or water privilege, under the facts and circumstances of the case, raised a legal presumption of a corresponding grant, and of his right to hold it.” There was nothing to rebut this proof, but testimony as to the height of the water at different times and under varying circumstances, and the opinions of witnesses as to what was the depth, at ordinary stages of the water.
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Opinion,
Mr. Justice Clark :
The plaintiffs in this case, who are the executors and trustees under the will of Thomas Kent, deceased, represent the owners of the Union and of the Rockbourne Mills, the former on the north, and the latter on the south side of Darby creek, in Delaware county. The defendant is the owner of a mill below, on the same stream, and the complaint is, that the defendant’s dam backs the water of Darby creek into the tail-race of the plaintiffs’ mills, thereby impeding their successful operation.
Thomas Kent derived title to the Union Mills under the deed of Joseph Hibberd to Thomas Garrett, dated February 11, 1822, and to the Rockbourne Mills under deed of David Evans to Samuel Garrett, dated December 16,1831. Sellers Hoffman claims title to the land under Asher Lobb, whose title originated in a deed from John Davis dated April 1, 1799, and to the water right under Joseph Hibberd, who while he was the owner of the upper, and Lobb of the lower tract, by deed dated May 16,18Í2, granted to Lobb “ the right, liberty, and privilege of erecting a dam across Darby creek, and of abutting the same against the land of the said Joseph Hibberd and Hannah, his wife, in the township of Upper Darby aforesaid, at the large rocks next below the meadow formerly occupied by James Black, and raising and swelling the water of the said creek as [395]*395high as opposite a beech tree, corner of the lands of the said Asher Lobb and David Evans, and no higher.”
The rights of the respective parties, so far as they related to the raising of the waters of Darby creek by the defendant’s dam, originated in this grant. It seems, however, that about the year 1816, the extent of Lobb’s right came into dispute between Lobb and Evans; and they referred the matter to Joseph Ball, Oborn Levis and Thomas Steel, throe of their neighbors, who bored a hole in a rock in the bed of the creek, and fixed the centre of that hole as the proper height to which Lobb might raise the water.
In 1833, Thomas Garrett brought suit against Asher Lobb for raising the water and flooding his race; when that case came to trial in 1835, it seems to have been conceded that the water was raised higher than the hole in the rock, and higher than the defendant had any right to raise it; this dispute was settled, however, the defendant agreeing to pay a nominal sum, annually, “ for the use of the power of the waters ” of the creek between the centre of the hole in the rock and the height of the dam; “ the said dam, as soon as may be after the expiration of the said lease, to be so reduced that the water in the creek, at common water, shall come up to the centre of the hole in the rock made by Thomas Steel, Oborn Levis, and Joseph Ball, and no higher.”
In 1846, Charles Kelly, who was then the owner of the lower or Hoffman Mills, built a dam below the present site, for the purpose of retaining a larger supply of water, and at that time made some kind of a water mark in the rocks at the breast of the present dam, but this mark has disappeared. In 1873, the new dam was washed out, and was not rebuilt. The old dam was put in repairs, however; and was maintained until in 1877, when it was partially driven out, and was again repaired. This occurred again in 1881, and in 1882 the dam was restored, and has since remained.
The proofs would seem to show that the creek “ at common water ” is now about eight inches above the hole in the rock made in 1816 ; and the plaintiffs’ contention is that this is in excess of the defendant’s right, and that the water is backed up into the tail race of their mills, to their injury, etc.
The last adjustment of the defendant’s rights, therefore, [396]*396would seem to have been made in 1835, when it was agreed that the centre of the hole in the rock was the rightful and proper mark defining the height to which the waters of this dam, in the ordinary stages, might be raised; -and it is fair to infer that in 1836 the dam was adjusted to its proper height, as there seems to have been no complaint to the contrary, nor is it pretended otherwise. There certainly was no “ very serious dispute” between the parties from 1836 to 1873. In 1868, 1869, or 1870, Kent is said to have complained that the water was too high, and Kelly sent a man to see whether there was any cause for complaint; others heard there was some dispute about that time, as to the height of the water, but had no personal knowledge of the facts. It does not appear that there was any work done on the dam, or that the height of the water was increased by this or any other means during these years. There certainly was no interference with Kelly’s use of the .water; no suit was brought, no adjustment made; in fact, there was no evidence of any such dispute as could have had any effect whatever in this case. But, even if there had been evidence of this character, the court, when the jury was recalled, submitted that question in the fullest and fairest manner.
The defendant’s further contention is, that although the water in its ordinary stages, at the time of the bringing of this suit, was admittedly several inches above the centre of the hole in the rock, yet it was in fact no higher than it had at all times been since the agreement of 1835 ; that the rock was not permanent, and since that year had sunk or tilted over; and that the hole which was bored into it as a water mark does not represent the proper height to which the defendant, by the agreement of 1835, was entitled to maintain his dam. The defendant further contended that the present height of the water is the same as it was in 1836, and that it has since that time continuously, and 'without interruption, been so maintained, under adverse claim of right; and there was evidence adduced in support of both of these propositions. These questions of fact were, we think, carefully and accurately submitted to the jury, and the verdict must be taken to have established one or other of them in favor of the defendant.
The case of Gehman v. Erdman, 105 Pa. 371, is cited, as [397]*397distinguishing between the effect of the testimony as to the height of the water and the height of the darn, in controversies of this character. In that case, as we there said, “ the defendant contended, and called witnesses to show, that the dam was built in the year 1843, and that since that time, and for twenty-one years prior to the bringing of the suit, it had been maintained in precisely the same form, and to the same and no greater height; that the structure was identically the same, in all respects, at the time when the suit was brought, as it had been at any time during the twenty-one years prior to that time, and that this long-continued enjoyment of the easement or water privilege, under the facts and circumstances of the case, raised a legal presumption of a corresponding grant, and of his right to hold it.” There was nothing to rebut this proof, but testimony as to the height of the water at different times and under varying circumstances, and the opinions of witnesses as to what was the depth, at ordinary stages of the water. In this condition of the proofs we said: “ If the defendant, or those under whom he claims, for a period of twenty-one years before suit brought, under a claim of right, openly, continuously, and uninterruptedly maintained his dam, the breast-wall or structure of which was at all times during that period of the same height, while the owner and possessor of the lands upon which the reservoir and race were located was under no disability to resist the use, the law will presume a grant of the easement, the extent of which is to be measured, not by the actual or average depth of the water at any given point, but by the nature and extent of the obstruction itself. The depth of the water, even in such a basin, is necessarily inconstant and variable; but the height of the dam structure is fixed and certain, and readily ascertainable.” It must be conceded that, owing to the changing condition of the stream from rain and drought, the ascertainment of the extent of an easement, by the height of the water alone, is difficult; so difficult, in some cases at least, as to render the ascertainment, in any exact sense, impracticable, if not impossible. What is the ordinary stage or level of a stream of water, or of a pool supplied by a stream, may be a matter of opinion merely. As Mr. Justice Lowbie said in McCoy v. Danley, 20 Pa. 91, that depends upon the seasons and the weather, and it is a matter about which people [398]*398differ; but the dam is a permanent and fixed structure, and, when its proper height is agreed upon or otherwise established, as long’ as its elevation is actually unchanged it affords the most satisfactory proof of the level to which the water may be raised.
It is certainly true that the presumption of a grant, arising from long-continued user, applies to the land occupied, and not to the dam, and the extent of the easement is measured by the extent to which the servient tenement is overflowed; but as long as the dam structure is of the same height, it may be assumed, in most cases at least, that the water is held to the same general level, and the extent of the land flooded from time to time is the same. The height of the water at what may be considered its ordinary level, as compared with known water marks, and the extent of land covered by the water at its ordinary stages from time to time, are proper evidence, of course, in this class of cases; but if it clearly appear that the dam-breast, through a period of twenty-one years prior to the time of the complaint, has been in fact unchanged, variations in the depth of the water, during the continuance, after that, of the structure, at the same height, may be fairly attributed -to the varying condition of the stream, or the evidence thereof to a difference of opinion as to what is the ordinary stage of the water. This is what we meant to say in Gehman v. Erdman, supra, and what was there said was applicable to the special facts of that case.
The reference to the statute, as giving title to the easement, was a mere inadvertence, which could have done no harm. ■While there is no statute that gives title to an easement of this character by adverse user, there is a well-established rule of law to that effect, in strict analog}*- to the statute of limitations, and this was what the court referred to. We think this case was very fully and fairly tried in the court below. Upon an examination of the whole case we find no error. The charge contains a very clear, correct, and satisfactory statement of the law, and an impartial review of the facts. We have not considered the assignments of .error in detail, nor in their order, but we have disposed of all the questions which may be supposed to arise out of the evidence.
The judgment is affirmed.