[229] The case was argued at the May term, 1842, and continued nisi. The opinion of the Court, Tenney J. having been consulted as counsel and taking no part in the decision, was after-wards drawn up, and announced at an adjourned term in Cumberland, in Feb. 1843, by
Shepley J.
— Several important questions are presented for consideration. One is, whether the complainant has established his title to the land overflowed, lie claims title of part of lot numbered fifteen, bounded upon the twelve mile pond in the town of China. There is a body of water denominated a cove running out on lot numbered fourteen from the pond, and continuing across lot numbered fifteen and separating the larger portion of it from a ridge of land remaining uncovered, with water between the cove and the pond. The objection to the title is, that the cove is but a part of the pond, and that according to the decision in the case of Bradley v. Rice, 1 Shep. 198, the complainant’s title is limited to its margin. It appears, that the proprietors of the township caused their lands to be surveyed into lots, which were designated by numbers and ranges. And it is necessary, that the lines of lot numbered fifteen should be extended across the cove to the main body of water in the pond, to make it conform to the other lots. And if they were not so extended, there would remain a ridge of land between the cove and pond not included in any lot and unappropriated. If it should be considered, that a conveyance bounded on a natural pond is to be limited to the first portion of water connected with it, the effect would be to exclude from the conveyance land separated from the residue of the lot by such a body of water, although so small, that the surveyor, while running the lines of the lot, might step over and disregard it. A small body of water thus connected would not be referred to or designated in common conversation as the pond; but would have some other name, as a cove, creek, or arm of the pond. And this would continue to be the designation of any larger and like body of water, which by common consent would seem to require a designation by some term other than the pqnd. It is therefore [230] best to conclude, that the parties to the conveyance used language in its ordinary and usual acceptation to decide, that the intention was not to limit the lot to a body of water usually designated by a different name; but to that body of water designated usually by the term used in the deed. And as the intention of the parties is to be regarded, the complainant must be considered as acquiring a title to the lot including the cove and extending to the margin of the pond.
Another question is, whether the jury should have been permitted to find, that the complainant had not been injured. By the statutes as existing before this State was separated from Massachusetts, this was a proper subject for the consideration of the. jury. But there can be no doubt, that it was the intention of the legislature of this State to require that defence to be first made before the commissioners, whose report may be impeached, and this question among others may then be regularly presented to a jury for decision. The difference •between the statutes before the revision of 1821, and since, was noticed in the case of Cowell v. The Great Falls Man. Co. 6 Greenl. 282. By the additional act of Massachusetts,passed on the 28th of Feb. 1798, the complainant was required to state, “ that he sustains damage in his lands by their being flowed in the manner mentioned in said act.” And the owner or occupant of the water mill might, among other matters of defence, “dispute the statement made'by the complainant.” And the act of that State, passed on the 27th of Feb. 1796, did not authorize the jury which assessed the dam- ■ ages to decide, that the complainant had not suffered any damages. On a revision of these statutes in this State, in the year 1821, the words “ dispute the statement made by the complainant,” were omitted in the statement of the defences, which might be made before a jury on the first trial in Court. And there was a provision inserted “ that if said jury (alluding to the j ury authorized to view the land and assess the damages) shall find and so return in their verdict, that no damage is done to the complainant by flowing his land as aforesaid, the respondent shall recover his costs.” The additional act passed [231] on the 14th day of February, 1824, c. 281, also provided, that the commissioners appointed to view the land and assess the damages, should determine, whether the complainant had suffered damage, subject to a revision before a jury. The statutes in Massachusetts did authorize the jury in the first instance to determine, whether Ihe complainant had suffered damage; but the statutes in this State have taken from such a jury that power, and transferred it to the jury or commissioners authorized to assess the damages. The presiding Judge was therefore correct in excluding the testimony tending to prove that the complainant had not suffered damage from the consideration of this jury. The question, whether the complainant has suffered any damages, is to be determined only, when the amount of damage is also under consideration.
Another question is, whether the dam, which retains the water of the twelve mile pond and causes it to overflow the land of the complainant is protected by the provisions of the statutes. It is only necessary to raise and preserve the water for the use of the mills on the stream, when the water, which usually flows in it, has become diminished. And it may be inferred from the report that it is necessary to enable the owners to work their mills at all times during the year. The first section of the statute does not prescribe the manner, in which a suitable head of water is to be raised. It only requires, that it should be found necessary to raise it. The means, by which the object is to be accomplished, appear to have been left to the mill owner. There is nothing in the statute to prohibit him from doing it by one or more dams situated at a greater or lesser distance from the mill; or by a dam on or near to which no mill is erected. The water may be raised and retained and conducted in a channel to any distance from the dam for use at the mill. And the owner is by the statutes authorized “ to continue the same head of water to his best advantage.” The design appears to have been, to authorize the mill owner to raise a suitable head of water and to control and use it in such a manner, as to enable him to employ his mill to the best advantage during the whole year. And that he should be [232] restricted only by the jury or commissioners, who are authorized to find, during “ what portion of the year the said lands ought not to be flowed.” It is the owner or occupant of the mill for the use of which the head of water is raised, who is especially made responsible in damages. And it is only in those sections of the statute, which authorize tenders or offers of compensation, that the owner or occupant of the mill dam is named. The only proper question therefore for consideration is, whether it be necessary, that the waters of the pond should be raised and caused to flow over their natural bounds for the purpose of raising a suitable head of water for the use of the mills. And the facts reported lead to the conclusion, that it would be necessary to enable the owners to work their mills to advantage during certain portions of the year. The statute appears to have received a like construction in the case of the Wolcott Woollen Manufacturing Company v. Upton, 5 Pick. 292.
Another question is, whether the fact, that the lands of the complainant have been overflowed for more than forty years to the same extent, can, under the circumstances presented in this report, be considered as an effectual bar to the process. It does not appear from the report of the case of Tinkham v. Arnold, 3 Greenl. 120, whether the owner of the lands would have suffered any damage during the earlier portion of the time while they were overflowed. The reasoning is general and not limited to any such state of facts. In the case of Hathorne v. Stinson, 3 Fairf. 183, it appeared, that the lands overflowed “ were first brought into cultivation about the year 1790, prior to which time they remained in a state of nature overgrown with bushes and affording no profit.” And the question presented for decision was, whether by flowing the lands in that condition from 1760 to 1789, without payment of damages, a legal presumption might arise, that the owners of the milldam had a license irrevocable to flow them to that extent. The Court say, “ if the owner of the land sustained no damage by the flowing, then his acquiescence ought not to be construed into an admission of right, or taken as evi[233] dence against him either of grant or license.” The opinion then proceeds to prove that under such circumstances, “ his hands are tied. He can neither resort to his action at common law nor to process under the statute. The mill owner can flow in perfect security without license and free from all liability to legal process; and so long as he can do this, no grant or license is to be presumed in his favor.”
In the case of Sidensparger v. Spear, 5 Shopl. 123, the question, whether under such circumstances a license to flow without payment of damages might be presumed, was again presented in connexion with another question, whether when a conveyance of real estate is made, a reservation to flow without payment of damages might be proved by parol testimony and be effectual. In that case the opinion states, that no damage was sustained by the flowing until the year 1835 ; and the ruling of the Judge against the validity of that defence was approved.
In the present case the report states, that “ there was no evidence, that any portion of said lot fifteen had been fenced until it was owned by said Nelson.” He purchased it in 1828, and there is no testimony tending to prove, that any profit could he derived from the land, or that it could be injured by the flow of the water before that time. It falls therefore within that class of cases, upon which this Court has, after mature consideration, decided that while the owner of the land suffers no damage and can therefore maintain no suit or process, or in any way prevent such flowing, he cannot be presumed to have granted or in any manner to have surrendered or relinquished any of his legal rights. It is indeed true, that a Court eminent for learning and ability has expressed an opinion, that the case of Tinkham v. Arnold was cot correctly decided. And some remarks were made, in delivering the opinion in the case of Williams v. Nelson, suited to introduce doubts, whether the later decisions in this State could be sustained. And the question to be now considered is, whether the principles of law, or the decided cases require, that an acquired or purchased right to flow should be presumed from [234] the facts presented in this case. And to prevent misapprehension, the facts material to the decision of it are considered to be, that the flowing has been continued for more than forty years without payment of damages and without occasioning any damage earlier -than the last five years. All presumptions rest upon the experience, and are founded upon a knowledge of man and of his motives of conduct. If a person for a long course of years claims the right to possess or enjoy estates or easements, and exercises that right without being molested, it is to be presumed, that he has done so lawfully. And if another person permits it, when it would be injurious to him, without interruption, it is to be presumed, that he knows, that the person has a legal right to do so. It would be against man’s experience and contrary to his motives of conduct to account for it so satisfactorily in any other manner. Omnia rite esse acta is a maxim of the law; and it also attributes such conduct rather to the exercise of a legal right, than to an encroachment. If this be the true foundation of presumptions, it will follow, that if the continuance of the possession or enjoyment can be accounted for without presuming any thing to favor it, and without imputing a conscious want of right or negligence to him, who does not interrupt it, the presumption cannot arise. It has no foundation to rest upon; or in the language of the law, it is rebutted. These positions are not inconsistent with the best administration of justice. They will work no wrong; and will secure to all their rights, unless they have been guilty of negligence in asserting them. And this is believed to be the doctrine relating to presumptions in the decided cases.
In the case of Knight v. Halsy, 2 B. & P. 206, the ground, on which a deed is to be presumed, is stated to be, that “ it cannot be supposed, that any man would suffer his neighbor to obstruct the light of his windows and render his house uncomfortable ; or to use a way with carts and carriages over his meadows for twenty years respectively, unless some agreement had been made between the parties to that effect.”
[235] In the case of Fenwick v. Reed, 5 B. & A. 232, Abbott C. J. states, that conveyances may be presumed, “ in cases where the original possession cannot be accounted for, and would be unlawful, unless there had been a grant.”
And Mr. Justice Holroyd in the same case says, “ in cases of rights of way, &c. the original enjoyment cannot be accounted for, unless a grant has been made; and therefore it is, that from long enjoyment such grants are presumed.” In the case of Gray v. Bond, 2 B. & B. 667,. Dallas C. J. says, “ mere lapse of time will not of itself raise against the owner the presumption of a grant. When lapse of time is said to afford such a presumption, the inference is also drawn from accompanying facts.” “And the presumption in favor of a grant will be more or less probable, as it may be more or less probable that those facts could not have existed without the consent of the owner of the land.” In the case of Daniel v. North, 11 East, 374, Lord Ellenborough says, “ the foundation of presuming a grant against a parly is, that the exercise of the adverse right, on which such presumption is founded, was against, the party capable of making the grant.” And in the case of Barker v. Richardson, 2 B. & A. 579, it was decided, that a grant of an easement could not be presumed, when it appeared, that the presumed grantor was incapable of making it. In the case of Cross v. Lewis, 2 B. & C. 686, which was an action • for obstructing the plaintiff’s light and air, Bayley J. says, “I do not say, that twenty years possession confers a legal right, but uninterrupted possession for twenty years raises a presumption of a right; and ever since the decision of Darwin v. Upton, (2 Saund. 175) it, has been held, that in the absence of any evidence to rebut that presumption, a jury should be directed to act upon it.” In Ricard v. Williams, 7 Wheat. 109, when speaking of presumptions relating to grants, Mr. Justice Story says, “they are founded upon the consideration, that the facts are su.ch as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of' an adverse title in, the party in possession. They [236] may therefore be encountered and rebutted by contrary presumptions ; and can never fairly arise, when all the circumstances are perfectly consistent with the non-existence of a grant. A fortiori, they cannot arise, where the claim is of such a nature, as is at variance with the supposition of a grant.” The doctrines asserted may well be permitted to rest, so far as authority is concerned, upon these cases and names without further reference. In Williams v. Nelson, 23 Pick. 145, it is said, “ if such flowing were not originally rightful on the mill owner’s own land or by permission of the land owner, it seems not easily accounted for, that such owner should acquiesce for a long series of years, without any claim to damage. The inference therefore is, that his consent was given voluntarily, or purchased by some deed or other act, which is lost by lapse of time.” However correct this reasoning may be when applied to cases, where the owner of land has suffered damage, and may assert his rights, it must be restricted to such cases, before it can be received and acted upon. For where the owner of the land has not suffered damage, and cannot therefore maintain any action at common law or process under the statute, there is no difficulty in accounting for his acquiescence for a long series of years. It would not only be perfectly consistent with the non-existence of a grant or other purchased right, but it would be contrary to the ordinary course of human affairs to expect any thing of the kind, while the law enabled him to accomplish all his purposes without it. It is not therefore necessarily true, " that the enjoyment of the right, free from all claim for damages, for forty years, was a right beyond that conferred" by statute.” The positions, that “ the statute, strictly speaking, does not confer on the mill owner the right to flow the land of another, it conveys no interest in the nature of leasehold or easement, or otherwise, or any authority to makp any actual use of the other’s land as a pond or reservoir. The owner may still embank against the water, if he pleases, and thus preserve his own land from being flowed,” if correct, can be of little value in the practical affairs of life. It is not impossible to conceive of such a state of things, that it would [237] not be possible to raise a suitable head of water, if the owner of the lands might embank against its flow. And jet the statute authorizing one to raise a suitable head of water, gives the right to use the means necessary for its accomplishment. And the notion of employing one person legally to raise such a head of water, although he may thereby injure others, and of legally employing the others to prevent his doing it, is not very satisfactory.
When it is said, that “ he may by force of the statute raise and maintain his dam without grant or license of the owner of the land flowed by it, but he cannot maintain it free from all claim for damage,” the statement must be considered as applicable to those cases only, where the flow of the water occasions damage. And cases of a different description, as the books show, are not of very unfrequent occurrence in this State. To presume one person to have obtained a grant or other acquired right to flow the land of another from an enjoyment of it for more than twenty years, while the law gave him such right of enjoyment, and deprived the other of all remedy and right of interruption, is irreconcilable with one’s sense of moral right, or with the principles of justice. And such a position, it is believed, cannot be maintained upon authority. If the language used in the case of Tinkham v. Arnold may require to be limited and applied to the time, during which no damages have been occasioned by the flow of the water; the language used in the case of Williams v. Nelson must also be limited and applied to cases where damages have been occasioned by it, before it can be admitted to lead to a correct conclusion.
Another question is, whether the respondent, upon the facts proved in this case, can be considered liable for the damages caused by the flow of the water occasioned by the stone dam. 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 [238] the use of the mills, also liable. One, who is neither the owner or occupant of a watermill, for the use of which the water has been raised or continued, nor the owner or occupant of the milldam, is not made liable, although he may appear to be benefitted by the flow of the water. It appears, that the dam “ was erected on the land of Francis M. Hollins by Joseph Southwick and others, mill owners, in 1817, as a reservoir dam to save the water for the use of several dams and mills on different parts of the stream.” But it does not appear, that the mill partly owned by the respondent, Butterfield, was one of those several mills. There are certain facts stated, which might lead to such a conclusion. It was not however upon this ground, that his liability was presented to the consideration of the jury; but upon the ground, that he might be interested in the dam. The instructions on this point were, “ that they would determine from said evidence, whether the respondents had not an interest in said stone dam ; and if so they were liable to this process.”
The phrase, interest in said stone dam, may not have been suited to communicate to the jury a clear perception of their duties; yet if the testimony would properly authorize them to find, that the respondents were either owners or occupants of the dam, there can be no just cause of complaint. They cannot be considered as owners of the dam ; for the report states, that they neither “ had any interest in the land, on which said stone dam was built, nor did they aid in building the same, nor had they since acquired any interest in it, unless it appears from the facts herein stated.” There is nothing stated to authorize the conclusion, that Greenlow was a part owner of the dam. The only testimony tending to prove, that Butterfield was an owner or occupant of it is, that on one occasion he assisted another person to sluice logs through it; and on another occasion said, that one, who wished to have the water stopped to repair his mill, could not have it done, unless he should be at his proportion of the expense of resisting the lawsuit commenced by the town of China. The last remark implies, that he had some authority to control the flow, of the [239] water, and might, if alone considered, authorize the conclusion, that he was then an owner or occupant of the dam. But when considered in connexion with the other facls, that he w’as not an owner of the land or a builder of the dam, and that the builders in the year 1828 put in a new sluice and exercised an entire control of it, by permitting Greenlow to use the water for a certain purpose at their pleasure, and that such actual exercise of control over the dam and flow of the water, for aught that appears, has been continued, and that by virtue of it Greenlow still continues to use the water, it would seem to be too slight, and too nearly disproved, to authorize the conclusion, that he was an owner or occupant at the time, when this process was commenced. It is not necessary to determine, whether Greenlow’s shop can bo considered as comprehended by the term watermill, first., because his liability was not presented to the jury as arising out of his being the owner of such a mill; and secondly, because it clearly appears, that if it were to be regarded as a mill, it was not one of those mills, for whose use the head of water has been raised or continued. There is only a right to use the water for it at the will of the owners or occupants of the dam, and at such times and under such restrictions as they may please to prescribe. If it were a corn mill, the owner, as such, would not be liable in damages for flowing the water; for it would not be a mill, for whose use the water was either raised or continued. And it appears from the report, that whatever act Greenlow may have done upon the dam, or control he may have exercised over it, has been by the employment of others, who have erected it, and as against him at least have had the entire control and occupation of it. He can only receive such a portion of water, as the occupants of the dam are pleased to permit. Such a use of the water has a tendency rather to disprove than to prove, that he was an owner or occupant of it. Occupancy implies the present right of possession or control, and the testimony shews, that he could have no such right.
The verdict is set aside and a neto trial granted.