The opinion of the court was delivered by
Bennett, J.
This is^ an action on the case, for obstructing a highway in the town of Shrewsbury. The highway mentioned in the declaration, and for the obstruction of which the action was brought, was formerly a part of the Green Mountain Turnpike, chartered in 1799, and so remained till about 1841, when the same became a public highway, by proceedings under the act of 1838, the object of which was to render turnpike roads free roads, and since then, the case finds that this has been a public highway, and the town bound to keep the road in repair. It seems that the water, running in the natural channel of Mill River, so called, would be. harmless to the highway in the vicinity, if unobstructed by dams; a small dam was erected across the stream above the village of Cuttingsville, in Shrewsbury, by means of which, a portion of the water from the river was conducted in. an artificial race-way through the village, on the west side of the street, and for several rods near the north end of the village, within the fences of the highway, and at the north end of the village across the highway, by a sluice-way, and thence to the main river; and that at the same date, mills had been erected, and other works, and their machinery carried by water taken from the canal or sluice-way ; and that the defendants and their grantors had been and were the owners and possessors of said mills and works and water privileges, and built the dam, canal and sluice-way, and sustained them; that the mills had been used but little in the winter season, and that, in warm times, till within four or five years previous to bringing the suit.
It seems, that the dam had been rebuilt several times, of about the same hight of logs, and the water continued to be used much in the same way, until some four or five years before the trial in the County Court, when a stone dam was built, and raised higher and made tighter than the preceding dams, and the mills were also rebuilt; from that time, the mills and works had been run id cold weather in the winter, and anchor-ice had formed in the sluice-way and race-way, in the.cold weather, whereby they became fill[203] ed up with water and ice, and the water and ice were forced into the highway, by means of which it was obstructed, and at times became almost impassable; and the case finds that the obstructions in the highway have been much increased, and the damages to the town mainly sustained, since the building of the stone dam, and the running of the mills in cold weather.
The case shows, that since the building of the stone dam, the town have suffered special damage, by being compelled to repair the road by reason of damages done by the water to it, and by being compelled to pay damages sustained by others by reason of the ■insufficiency of the road, occasioned by the ice and water.
The court charged the jury, “ that if they should find that at the time the road was established as a public highway, and for fifteen years before the commencement of the present action, the occupants of said mill were, and had been, in the use of the water, and it had passed from the mills in the same channel during the whole of the time, and that the use of the water as to time was, and had been, limited only by the interest or convenience of the occupants, they were not liable for any damages sustained in consequence of any obstruction in the channel by anchor-ice, or other natural causes, although they might have used the water a greater length of time in each year since 1841, than before.”
If the plaintiffs have sustained special damage in their corporate capacity, we see no reason why they should not, for such consequential damage, have the same right of redress, as an individual in like circumstances might have had. In the case of Sheldon v. Fairfax, 21 Vt. 102, the common law doctrine, that when one party sustains an injury by the culpable misconduct or negligence of another, the party injured may.recover his damages in an action on the case, was applied to a ccjitroversy between two towns, and we think correctly. But this point is not relied upon by the defendants’ counsel. The only question made is, as to the defendants’ right to use the water in the manner claimed, and if they have suc}i right, then the injury to the plaintiffs is damnum, absque injuria.
The charge of the court puts the case to the jury upon the hypothesis, that the plaintiffs have no right to recover, if the occupants of the mills had been in the use of the water for the term of fifteen years next before the suit was brought, and the water had [204] passed from tlie mills in the same channel during the whole of that time, and the defendants had limited, as to time, the use of the water, by their own. interest and convenience. We apprehend, there was error in the rule laid down by the County Court, as applied to the case then before the court. The case shows that the main damages had resulted to the town since the stone dam was built, which was raised higher than any of the previous dams, and also made tighter, and the mills run in cold weather in the winter, when they had only been accustomed to run but a little in the winter, and that in warm weather. By this means, there was a great increase of anchor-ice thrown upon the road, which, with the water, caused the damage.
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The opinion of the court was delivered by
Bennett, J.
This is^ an action on the case, for obstructing a highway in the town of Shrewsbury. The highway mentioned in the declaration, and for the obstruction of which the action was brought, was formerly a part of the Green Mountain Turnpike, chartered in 1799, and so remained till about 1841, when the same became a public highway, by proceedings under the act of 1838, the object of which was to render turnpike roads free roads, and since then, the case finds that this has been a public highway, and the town bound to keep the road in repair. It seems that the water, running in the natural channel of Mill River, so called, would be. harmless to the highway in the vicinity, if unobstructed by dams; a small dam was erected across the stream above the village of Cuttingsville, in Shrewsbury, by means of which, a portion of the water from the river was conducted in. an artificial race-way through the village, on the west side of the street, and for several rods near the north end of the village, within the fences of the highway, and at the north end of the village across the highway, by a sluice-way, and thence to the main river; and that at the same date, mills had been erected, and other works, and their machinery carried by water taken from the canal or sluice-way ; and that the defendants and their grantors had been and were the owners and possessors of said mills and works and water privileges, and built the dam, canal and sluice-way, and sustained them; that the mills had been used but little in the winter season, and that, in warm times, till within four or five years previous to bringing the suit.
It seems, that the dam had been rebuilt several times, of about the same hight of logs, and the water continued to be used much in the same way, until some four or five years before the trial in the County Court, when a stone dam was built, and raised higher and made tighter than the preceding dams, and the mills were also rebuilt; from that time, the mills and works had been run id cold weather in the winter, and anchor-ice had formed in the sluice-way and race-way, in the.cold weather, whereby they became fill[203] ed up with water and ice, and the water and ice were forced into the highway, by means of which it was obstructed, and at times became almost impassable; and the case finds that the obstructions in the highway have been much increased, and the damages to the town mainly sustained, since the building of the stone dam, and the running of the mills in cold weather.
The case shows, that since the building of the stone dam, the town have suffered special damage, by being compelled to repair the road by reason of damages done by the water to it, and by being compelled to pay damages sustained by others by reason of the ■insufficiency of the road, occasioned by the ice and water.
The court charged the jury, “ that if they should find that at the time the road was established as a public highway, and for fifteen years before the commencement of the present action, the occupants of said mill were, and had been, in the use of the water, and it had passed from the mills in the same channel during the whole of the time, and that the use of the water as to time was, and had been, limited only by the interest or convenience of the occupants, they were not liable for any damages sustained in consequence of any obstruction in the channel by anchor-ice, or other natural causes, although they might have used the water a greater length of time in each year since 1841, than before.”
If the plaintiffs have sustained special damage in their corporate capacity, we see no reason why they should not, for such consequential damage, have the same right of redress, as an individual in like circumstances might have had. In the case of Sheldon v. Fairfax, 21 Vt. 102, the common law doctrine, that when one party sustains an injury by the culpable misconduct or negligence of another, the party injured may.recover his damages in an action on the case, was applied to a ccjitroversy between two towns, and we think correctly. But this point is not relied upon by the defendants’ counsel. The only question made is, as to the defendants’ right to use the water in the manner claimed, and if they have suc}i right, then the injury to the plaintiffs is damnum, absque injuria.
The charge of the court puts the case to the jury upon the hypothesis, that the plaintiffs have no right to recover, if the occupants of the mills had been in the use of the water for the term of fifteen years next before the suit was brought, and the water had [204] passed from tlie mills in the same channel during the whole of that time, and the defendants had limited, as to time, the use of the water, by their own. interest and convenience. We apprehend, there was error in the rule laid down by the County Court, as applied to the case then before the court. The case shows that the main damages had resulted to the town since the stone dam was built, which was raised higher than any of the previous dams, and also made tighter, and the mills run in cold weather in the winter, when they had only been accustomed to run but a little in the winter, and that in warm weather. By this means, there was a great increase of anchor-ice thrown upon the road, which, with the water, caused the damage.
No principle is better settled, than that the extent of the presumed right is determined by ,theuser, upon which is founded the presumed grant; the right granted being only co-extensive with the right enjoyed. Bealy v. Shaw, 6 East. 208. Bigelow v. Battle, 15 Mass. 313. Davenport v. Lampson, 21 Pick. 72. Cotton Pacaput Manf'c. Co., 13 Metc. 429; and it would seem from the case of Stoult v. Baringdon, 5 Esp. 56, as well as upon principle, that if the enjoyment of the water has been limited to certain days in the week, it cannot be lawfully used on any other day; and in the case before us, the use of the water, until the stone, dam was built, had been limited in the winter season to a very partial use, and, even that, in warm weather. The case also shows, that the user of the water, after the erection of the stone dam, was not only more extensive in time, but the mode of enjoyment was different; that is, by means of a higher and tighter dam than before, and that damages then resulted from its use, which were unknown before. As the water had been used, after the erection of the stone dam, but a short tifflBffilere is no ground to presume a grant from the town to use tjpKE&ter, as it had been used from the erection of that dam, until the suit was brought. In Darlington v. Painter, 7 Barr. (Penn. Rep.) 473, the defendant had for more than twenty years been in the habit of using a certain ditch to pass off water running over and accumulating upon his lands ; and in 1844, he built a mill, and entered at the same time upon the plaintiff’s land and cleared the ditch, saying he intended to use it for a tail-race; but when the action was brought, the mill had not commenced working, and it was held, that the defendant [205] could not use it for any purpose that would increase the flow, enlarge the ditch, or affect the water in any way different from that use, for which the water course was granted. In the charge of the court, the defendants are not confined to the use of the same amount of water that had been accustomed to flow over the highway in the race-way for fifteen years or more; neither are they required, as to time, to use it, as it had been used for fifteen years; and the right to use a thing, which rests in a supposed grant, may as well be qualified, as to the time of its use, as in any other respect ; and in the case at bar, the time is all important.
It was only in cold winter weather, that anchor-ice was formed. The court do not instruct the jury upon what state of facts the plaintiffs would be entitled to recover, nor whether they could recover, if at all, against all the defendants. As the question has not been argued, as to the plaintiffs’ right to maintain their action against all the defendants, we forbear to express any opinion upon it, though perhaps no difficulty would arise on that part of the case.
The judgment of the County Court is reversed, and a new trial granted.