Parker, C. J.
The title derived from Skinner to the plaintiff conveyed one half of a tract of land on the westerly, or Meredith side of the river, with one half of the mill and privilege alleged to be injured by the dam below, built by the defendant. It does not appear from the case when the plaintiff took his deed, but the mill was first built in 1828.
Gordon was formerly owner of the other half, and his deed of Dec. 10, 1831, conveyed that half to the plaintiff, with the exception of what Gordon had previously conveyed by his deed to Batchelder, in August, 1830.
[510]*510By the deed to Batchelder, Gordon conveyed one half of so much of the premises as the new dam, lately constructed at Batchelder’s mills, should flow, with one half of two rods in width of the land along the westerly bank, <fcc.. reserving his ownership of the saw-mill standing on the premises, to use subject to the flowing of the dam, and to take it off at his pleasure.
The dam mentioned in this conveyance is understood to be the same dam mentioned in the declaration, and the deed conveyed the title to an undivided half of the land, and gave the right, so far as Gordon could give it, to do what is the subject matter of the complaint in the present case. But Gordon being the owner of only one undivided half, could convey no interest or easement in the other half, and his deed in no way purports to convey any such interest, or to give any license affecting it. The operation of the deed was to constitute Batchelder a tenant in common with the plaintiff, of the strip of land two rods in width lying along the river, and also of that portion of the land which should be flowed, subject to the reservation by which Gordon had the right to use and appropriate his half of the mill. And as the defendant was a joint purchaser with Batchelder, and paid one half of the consideration, he may also be considered as a tenant in common by means of a resulting trust for his benefit, notwithstanding the deed was taken to Batchelder alone. 3 N. H. R. 170, Scoby vs. Blanchard; 4 ditto 397, Pritchard vs. Brown ; 8 ditto 197, Page vs. Page.
The question which arises on these facts is, whether one tenant in common is authorized, by means of a dam erected upon other land, to flow the land owned in common, without the license of his co-tenant; and if not, whether an action on the case can be maintained against him for the injury.
To a certain extent, the act of one tenant in common is regarded as the act of ail the tenants, and he may have the entire actual possession of the common property without being a wrong doer. Thus trespass cannot be maintained in [511]*511favor of one tenant in common against another, for a mere breaking and entering of the close, and taking the whole profits. 5 Burr. 2604, Fairclaim vs. Shackleton ; 5 Mass. R. 351, Higbee vs. Rice ; 16 Mass. 4, Keay vs. Goodwin. So a tenant in common may cot down trees of a proper age and growth to be cut. 8 D. & E. 145, Martyn vs. Knowllys. And may convert a chattel to its general and profitable application ; as a whale into oil, or wheat into flour. 1 Taunt. R. 241, Fennings vs. Lord Grenville.
But one tenant in common is not authorized to exclude another from the possession of land owned in common, or to destroy a chattel, or to sell the whole of it. If one tenant in common of land oust his co-tenant, the latter may maintain trespass. 3 Wils. 118; 7 Cowen’s R. 229, Erwin vs. Olmslead; 1 Greenl. R. 89, Brackett vs. Norcross. If he destroy personal property owned in common, trover lies. Co. Litt. 200, a. So if he sell the entire property. 3 Johns. R. 175, Wilson vs. Reed; 9 Wend. 338, Farr vs. Smith.
It has been said “ if one tenant in common take all the chattels personal, the other hath no remedy by action, but he may take them again (Co. Litt. 200, a.) and that one cannot bring trover against another for a thing still in his possession, for the possession of one is the possession of both, (2 Saund. R. 47, f, note,) and this is true of a mere taking and continuance of possession, But there may well be a question, whether an action will not lie if one tenant in common of a chattel, owned and held for use, appropriate it entirely to his own use, and refuse to permit the other to have any possession or use of it. 8 D. & E. 145. “ There must be a destruction of the chattel, or something equivalent to it, or something which amounts as it were to an ouster, so that a tenant in common who commits it cannot account.” 1 Taunt. 249. There must be some act unauthorized by the ownership in common, and in violation of the just rights of the other party. And when such an act is done, how is the party justified or excused by the fact that he was a tenant in common ?
[512]*512In May vs. Parker, 12 Pick. R. 34, the court held that where a person being sole owner of one mill, and tenant in common of another, uses in his several mill more water than appertains to it, to the injury of the mill owned in common, a bill in equity may be maintained. It is not decided in that case that an action at law would not lie, but only that the remedy at law, if one existed, would be inadequate for the redress of the wrong done.
A question has been made, whether the plaintiff, as tenant in common, can have a remedy at law, for the flowing of the common property. The general rule is that tenants in common must join in personal actions for a wrong done, by a stranger, to the common property. Co. Lilt. 198, a; 9 N. H. R. 75, Wilson vs. Gamble. But where the injury is separate, they may have several actions. 2 Wm. Black. 1077. And the rule that they must join, cannot apply where the injury is done by a co-tenant.
The cases before cited show that trespass and trover may be maintained by one co-tenant against another. In Martyn vs. Knowllys, before cited, Lord Kenyon said, “If one tenant in common misuse that which he has in common with another, he is answerable to the other in an action as for a misfeasance.” In Chesley vs. Thompson, 3 N. H. R. 9, case was maintained against a tenant in common of a mill, for so negligently keeping his fire, while he had the sole use of the mill, that it was burnt and destroyed. And in Blanchard vs. Baker, 8 Greenl. 253, the court held that one tenant in common might maintain case against his co-tenant, for diverting the water from their common mill, for separate purposes of his own. The act of the defendant in flowing the common property in this case, if without right, is not a mere entry and possession, as a tenant in common, subjecting him to account for the profits, but it is an act which tor-tiously deprives the plaintiff of the use of the property, and is in the nature of a destruction of the use for which it was intended. The remedy, therefore, is well sought, if the act of the defendant is not justified.
[513]
Free access — add to your briefcase to read the full text and ask questions with AI
Parker, C. J.
The title derived from Skinner to the plaintiff conveyed one half of a tract of land on the westerly, or Meredith side of the river, with one half of the mill and privilege alleged to be injured by the dam below, built by the defendant. It does not appear from the case when the plaintiff took his deed, but the mill was first built in 1828.
Gordon was formerly owner of the other half, and his deed of Dec. 10, 1831, conveyed that half to the plaintiff, with the exception of what Gordon had previously conveyed by his deed to Batchelder, in August, 1830.
[510]*510By the deed to Batchelder, Gordon conveyed one half of so much of the premises as the new dam, lately constructed at Batchelder’s mills, should flow, with one half of two rods in width of the land along the westerly bank, <fcc.. reserving his ownership of the saw-mill standing on the premises, to use subject to the flowing of the dam, and to take it off at his pleasure.
The dam mentioned in this conveyance is understood to be the same dam mentioned in the declaration, and the deed conveyed the title to an undivided half of the land, and gave the right, so far as Gordon could give it, to do what is the subject matter of the complaint in the present case. But Gordon being the owner of only one undivided half, could convey no interest or easement in the other half, and his deed in no way purports to convey any such interest, or to give any license affecting it. The operation of the deed was to constitute Batchelder a tenant in common with the plaintiff, of the strip of land two rods in width lying along the river, and also of that portion of the land which should be flowed, subject to the reservation by which Gordon had the right to use and appropriate his half of the mill. And as the defendant was a joint purchaser with Batchelder, and paid one half of the consideration, he may also be considered as a tenant in common by means of a resulting trust for his benefit, notwithstanding the deed was taken to Batchelder alone. 3 N. H. R. 170, Scoby vs. Blanchard; 4 ditto 397, Pritchard vs. Brown ; 8 ditto 197, Page vs. Page.
The question which arises on these facts is, whether one tenant in common is authorized, by means of a dam erected upon other land, to flow the land owned in common, without the license of his co-tenant; and if not, whether an action on the case can be maintained against him for the injury.
To a certain extent, the act of one tenant in common is regarded as the act of ail the tenants, and he may have the entire actual possession of the common property without being a wrong doer. Thus trespass cannot be maintained in [511]*511favor of one tenant in common against another, for a mere breaking and entering of the close, and taking the whole profits. 5 Burr. 2604, Fairclaim vs. Shackleton ; 5 Mass. R. 351, Higbee vs. Rice ; 16 Mass. 4, Keay vs. Goodwin. So a tenant in common may cot down trees of a proper age and growth to be cut. 8 D. & E. 145, Martyn vs. Knowllys. And may convert a chattel to its general and profitable application ; as a whale into oil, or wheat into flour. 1 Taunt. R. 241, Fennings vs. Lord Grenville.
But one tenant in common is not authorized to exclude another from the possession of land owned in common, or to destroy a chattel, or to sell the whole of it. If one tenant in common of land oust his co-tenant, the latter may maintain trespass. 3 Wils. 118; 7 Cowen’s R. 229, Erwin vs. Olmslead; 1 Greenl. R. 89, Brackett vs. Norcross. If he destroy personal property owned in common, trover lies. Co. Litt. 200, a. So if he sell the entire property. 3 Johns. R. 175, Wilson vs. Reed; 9 Wend. 338, Farr vs. Smith.
It has been said “ if one tenant in common take all the chattels personal, the other hath no remedy by action, but he may take them again (Co. Litt. 200, a.) and that one cannot bring trover against another for a thing still in his possession, for the possession of one is the possession of both, (2 Saund. R. 47, f, note,) and this is true of a mere taking and continuance of possession, But there may well be a question, whether an action will not lie if one tenant in common of a chattel, owned and held for use, appropriate it entirely to his own use, and refuse to permit the other to have any possession or use of it. 8 D. & E. 145. “ There must be a destruction of the chattel, or something equivalent to it, or something which amounts as it were to an ouster, so that a tenant in common who commits it cannot account.” 1 Taunt. 249. There must be some act unauthorized by the ownership in common, and in violation of the just rights of the other party. And when such an act is done, how is the party justified or excused by the fact that he was a tenant in common ?
[512]*512In May vs. Parker, 12 Pick. R. 34, the court held that where a person being sole owner of one mill, and tenant in common of another, uses in his several mill more water than appertains to it, to the injury of the mill owned in common, a bill in equity may be maintained. It is not decided in that case that an action at law would not lie, but only that the remedy at law, if one existed, would be inadequate for the redress of the wrong done.
A question has been made, whether the plaintiff, as tenant in common, can have a remedy at law, for the flowing of the common property. The general rule is that tenants in common must join in personal actions for a wrong done, by a stranger, to the common property. Co. Lilt. 198, a; 9 N. H. R. 75, Wilson vs. Gamble. But where the injury is separate, they may have several actions. 2 Wm. Black. 1077. And the rule that they must join, cannot apply where the injury is done by a co-tenant.
The cases before cited show that trespass and trover may be maintained by one co-tenant against another. In Martyn vs. Knowllys, before cited, Lord Kenyon said, “If one tenant in common misuse that which he has in common with another, he is answerable to the other in an action as for a misfeasance.” In Chesley vs. Thompson, 3 N. H. R. 9, case was maintained against a tenant in common of a mill, for so negligently keeping his fire, while he had the sole use of the mill, that it was burnt and destroyed. And in Blanchard vs. Baker, 8 Greenl. 253, the court held that one tenant in common might maintain case against his co-tenant, for diverting the water from their common mill, for separate purposes of his own. The act of the defendant in flowing the common property in this case, if without right, is not a mere entry and possession, as a tenant in common, subjecting him to account for the profits, but it is an act which tor-tiously deprives the plaintiff of the use of the property, and is in the nature of a destruction of the use for which it was intended. The remedy, therefore, is well sought, if the act of the defendant is not justified.
[513]*513The next question is, whether the defendant can justify the act complained of, by his ownership of the land on the Gilford side of the river, opposite the mill and land in which the plaintiff claims an interest, and by the erection of a mill there in 1803, or 1804, and the extension of the dam across the river, in the manner mentioned in the case.
The title of the defendant, on that side of the river, derived from Skinner and others, bounds him on the river, and of course extends to the thread of it. But this would not authorize him, or any one under whom he claims, to extend a dam across the river, and appropriate the whole water to his own use, as first occupant; nor to flow the land on the Meredith side, by means of a dam erected below. 5 N. H. R. 231, Gilman vs. Tilton ; 4 Mason’s R. 400, Tyler vs. Wilkinson; 13 Johns. 212.
Nor can the defendant justify flowing the plaintiff’s mill and land, by reason of the erection of the mill and dam on the southerly, or Gilford side of the river, more than thirty years since. If that mill and dam had continued for a period of twenty years, the continuance of the dam, and the uninterrupted use of the water, for that period, would have furnished conclusive evidence of a right to maintain the dam, and to use the water, to the extent of the use for that period. Whether such circumstances would have furnished evidence of a general grant to use the water of the river at the mill on the southerly side, or whether the owner of the land at the northerly end of the dam might have erected a mill there, and have used the dam, such as it was—or have made additions to it, for his own benefit, and have used the residue of the water, or any part of it—we have not found it necessary to enquire. It appears from the case, that a portion of the dam was carried away soon after it was built. A log was generally put across, afterwards, when the mill was used ; but the mill itself was not used after 1819, and went to decay, for what reason does not appear. The fact that a portion of the dam remained more than twenty years, and still [514]*514remains, furnishes no evidence of aright to use all the water there. That constitutes no appropriation of the mill privilege. 5 N. H. R. 231; 4 Mason 397. A man may build a dam as high as he pleases on his own land. So long as he does not obstruct others in the enjoyment of their property and rights, they have no occasion to complain, nor does his dam, in such case, furnish any evidence of a grant to him. It is the adverse use of the stream which furnishes the evidence of the right to interfere with the property of others.
If the erection and continuance of a mill and dam might have furnished evidence of a right to flow the plaintiff’s land, by means of that dam, it would not follow that the defendant could flow the plaintiff’s land by means of a dam erected at another place below. There might be incidental advantages, to the owners on the northerly side, in having a dam at the place where the old mill stood, which would induce them to make a grant of the right to maintain such dam, and to flow the land by it, but which would not accrue from the dam erected at Batchelder’s mills ; and if the right is maintained by the presumptive evidence arising from occupation for more than twenty years, it might perhaps be limited to the maintenance of a dam at the same place, or of one which should flow in the same manner ; but it is not necessary to pursue this enquiry.
It appears farther, that rafts of logs and of boards have, for thirty years or more, passed up and down the river; and it is alleged that the river is a common public highway, and the plaintiff’s dam an obstruction and nuisance. But this cannot justify the defendant in flowing the plaintiff’s undivided half of the land, nor in covering with water the dam there erected.
In Hart vs. The Mayor, &c. of Albany, 9 Wend. 571, a query is made, whether an individual, without being specially aggrieved, has a right to abate or remove a nuisance in a public river. If the defendant had a right to interfere, on that ground, it was by abating the nuisance, (10 Mass. 70, [515]*515Arundel vs. McCulloch ; 2 Mass. 143, Wales vs. Stetson,) not by covering it up, and the plaintiff’s land with it.
Judgment for the plaintiff.