J. For
For more than fifteen years before either the plaintiff or defendant became a proprietor upon this stream of water, called Beaver Brook, and before any other water-works or machinery were erected thereon, except perhaps the old saw- mill, a grist-mill had been erected upon the site of the plaintiff’s present saw-mill, which, together with a dam and pond appur- tenant, had been continued and occupied; and the water of said stream, as it flowed in its natural and unobstructed course, course, [318]*318for the use of said mill, had been, during all that time, used and appropriated, by one Roswell Marsh, and those from whom he had derived title, The plaintiff claims title under Roswell Marsh. Marsh and those under whom he claimed, also, during the same time, owned the small piece of land at the outlet of the pond, from which said stream issued, on which was a small dam for the use of said grist-mill below ; and at the same time, he owned the land on both sides of said stream, which was situated below the land of Lomar Griffin, and on which said grist-mill and dam were, as well as a saw-mill, standing some distance above the grist-mill. If Marsh acquired
no special right of water in this stream, as first occupant, it is very certain, that by his unmolested use and appropriation of the water, for the use of his grist-mill, for more than fifteen years, he acquired such a right by prescrip- tion, which he could convey to others. Sherwood v. Burr, 4 Day, 244. Ingraham v. Hutchinson, 2 Conn. Rep. 584. King v. Tiffany, 9 Conn. Rep. 162. Buddington v. Bradley, 10 Conn. Rep. 213.
This right, whether itbe a special one, or only the natural right of every riparian proprietor, to use flowing water ut cur- rere solebat, having once existed, as an appurtenant to the grist-mill, has come, along with said grist-mill, to the plaintiff, exists in him, and may be vindicated and claimed by him, for the use of his present saw-mill, standing upon the same site, unless the defendant, who is now a proprietor of the trip-ham- mer shop and dam above, on the stream, can establish the fact that he now has, either by grant, licence or prescription, a right materially to diminish the quantity of water, or to obstruct it in its passage to the plaintiff’s mill, or that, in some way, the right once existing in Roswell Marsh has become extinguish- ed or modified. Wright v. Howard, 1 Sim. & Stu. 190. Ma- son v. Hill & al. 3 B. & Adol. 304. (23 Serg. & Lowb. 76.) S. C. 5 B. & Adol. 1. (27 Serg. & Lowb. 11.) The defendant, conceding this
The defendant, conceding thisposition, does claim, that such has been the legal operation and effect of some of the deeds read in evidence at the trial, that the right once existing in Roswell Marsh never vested in the plaintiff; and that if it did, it has since become extinguished; and therefore, the defendant objected to the whole of the evidence offered by the plaintiff. It becomes necessary, therefore, to examine, with some care, [319]*319the deeds in question, with reference to their operation upon the plaintiff’s claims,
The first deed is from Lomar Griffin to Jewett, the defendant and John P. Oviatt, dated July 27th, 1813. This deed conveys one acre of land, the same upon which the trip-hammer shop of the defendant stands, and upon width the dam of which the plaintiff complains, was some years afterwards erect- ed. At the date of this deed. Roswell Marsh owned the out- let of the pond, as well as the land and privileges of water now in controversy, and had, at that time, used the water as the plaintiff now claims it, for more than fifteen years. Lomar Griffin, the grantor in this deed, owned the land on both sides of this stream, below the small dam at the outlet of the pond, and above Roswell Marsh’s land, on which the plaintiff’s mill stands ; but he owned no special water rights, nor any rights which could conflict with the then established rights of Marsh: of course, he could convey none. Nor did he attempt to do it; he conveyed only a parcel of land on both sides of the stream. John P. Oviatt, by his deed, dated March 4th, 1815, convey- ed his interest in the same parcel of land, to the defendant. The deeds next relied
upon by the defendant, as supporting his claim, are the deeds from Roswell Marsh to Benjamin Tucker, the plaintiff, Allen Jewett, the defendant, and John P. Oviatt, dated July 11th, 1814, and the several deeds of partition made by these grantees, on the 23d of September, 1814. The aforesaid deed from Marsh, conveys all the land, mills, and such privileges of water as he owned, to the aforesaid persons, as tenants in common. At that time, he owned the grist-mill and water privileges now claimed by the plaintiff; also, the saw-mill and privilege standing above ; and also the small piece of land at the outlet of the pond, as well as other lands lying on the stream below the defendant’s trip-hammer shop. These grantees, now being joint owners of the grist- mill and privileges, had power to divert the water or obstruct it, so as to destroy the grist-mill privilege, or to render it subservi- ent to any other use of the water. But they did not exercise such power; they permitted the water still to flow, unobstruct- ed, for the use of the grist-mill, in the same manner as it had done for more than fifteen years before. Instead of impairing or destroying this privilege, they recognised its existence while joint owners, and, as will be seen, confirmed it, in their subse- Litchfield, June. 1836. Tucke? [320]*320quent partition. The partition deed, executed by the plaintiff and Oviatt to the defendant, does not interfere with the gristmill privilege, but on the contrary, recognises it, and reserves it unimpaired.
By this deed, the defendant becomes entitled in severalty to the property bought of Roswell Marsh, “ excepting the grist mill and saw-mill, with the privileges of water and mill-yards for the same, that is below the trip hammer shop.” This reserved privilege is the same which was acquired and owned, by Roswell Marsh, for his grist-mill and saw-mill, and the same now claimed by the plaintiff. The defendant and Oviatt, in their partition deed to the plaintiff, convey to him the grist-mill and pond, without any reservation of privileges. The plaintiff and defendant, at the same time, apart and convey to Oviatt, the old saw-mill and site above the grist-mill, with the privileges of mill pond and other privileges. These several deeds, executed at the same time, and intended as a partition of the common property, must be treated and construed as one conveyance, in which there is reserved and confirmed in the plaintiff a well known and long established right, with nothing to impair it. It is the same right, which the plaintiff now seeks to protect and enforce. The defendant has not reserved, nor pretended to create, for the benefit of his trip-hammer shop, any other or greater privilege than was appurtenant to it before.
It was quite earnestly insisted, by the defendant, that the expressions in the deed from Jewett and Oviatt to Tucker, and in the deed from Tucker and Jewett to Oviatt,
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J. For
For more than fifteen years before either the plaintiff or defendant became a proprietor upon this stream of water, called Beaver Brook, and before any other water-works or machinery were erected thereon, except perhaps the old saw- mill, a grist-mill had been erected upon the site of the plaintiff’s present saw-mill, which, together with a dam and pond appur- tenant, had been continued and occupied; and the water of said stream, as it flowed in its natural and unobstructed course, course, [318]*318for the use of said mill, had been, during all that time, used and appropriated, by one Roswell Marsh, and those from whom he had derived title, The plaintiff claims title under Roswell Marsh. Marsh and those under whom he claimed, also, during the same time, owned the small piece of land at the outlet of the pond, from which said stream issued, on which was a small dam for the use of said grist-mill below ; and at the same time, he owned the land on both sides of said stream, which was situated below the land of Lomar Griffin, and on which said grist-mill and dam were, as well as a saw-mill, standing some distance above the grist-mill. If Marsh acquired
no special right of water in this stream, as first occupant, it is very certain, that by his unmolested use and appropriation of the water, for the use of his grist-mill, for more than fifteen years, he acquired such a right by prescrip- tion, which he could convey to others. Sherwood v. Burr, 4 Day, 244. Ingraham v. Hutchinson, 2 Conn. Rep. 584. King v. Tiffany, 9 Conn. Rep. 162. Buddington v. Bradley, 10 Conn. Rep. 213.
This right, whether itbe a special one, or only the natural right of every riparian proprietor, to use flowing water ut cur- rere solebat, having once existed, as an appurtenant to the grist-mill, has come, along with said grist-mill, to the plaintiff, exists in him, and may be vindicated and claimed by him, for the use of his present saw-mill, standing upon the same site, unless the defendant, who is now a proprietor of the trip-ham- mer shop and dam above, on the stream, can establish the fact that he now has, either by grant, licence or prescription, a right materially to diminish the quantity of water, or to obstruct it in its passage to the plaintiff’s mill, or that, in some way, the right once existing in Roswell Marsh has become extinguish- ed or modified. Wright v. Howard, 1 Sim. & Stu. 190. Ma- son v. Hill & al. 3 B. & Adol. 304. (23 Serg. & Lowb. 76.) S. C. 5 B. & Adol. 1. (27 Serg. & Lowb. 11.) The defendant, conceding this
The defendant, conceding thisposition, does claim, that such has been the legal operation and effect of some of the deeds read in evidence at the trial, that the right once existing in Roswell Marsh never vested in the plaintiff; and that if it did, it has since become extinguished; and therefore, the defendant objected to the whole of the evidence offered by the plaintiff. It becomes necessary, therefore, to examine, with some care, [319]*319the deeds in question, with reference to their operation upon the plaintiff’s claims,
The first deed is from Lomar Griffin to Jewett, the defendant and John P. Oviatt, dated July 27th, 1813. This deed conveys one acre of land, the same upon which the trip-hammer shop of the defendant stands, and upon width the dam of which the plaintiff complains, was some years afterwards erect- ed. At the date of this deed. Roswell Marsh owned the out- let of the pond, as well as the land and privileges of water now in controversy, and had, at that time, used the water as the plaintiff now claims it, for more than fifteen years. Lomar Griffin, the grantor in this deed, owned the land on both sides of this stream, below the small dam at the outlet of the pond, and above Roswell Marsh’s land, on which the plaintiff’s mill stands ; but he owned no special water rights, nor any rights which could conflict with the then established rights of Marsh: of course, he could convey none. Nor did he attempt to do it; he conveyed only a parcel of land on both sides of the stream. John P. Oviatt, by his deed, dated March 4th, 1815, convey- ed his interest in the same parcel of land, to the defendant. The deeds next relied
upon by the defendant, as supporting his claim, are the deeds from Roswell Marsh to Benjamin Tucker, the plaintiff, Allen Jewett, the defendant, and John P. Oviatt, dated July 11th, 1814, and the several deeds of partition made by these grantees, on the 23d of September, 1814. The aforesaid deed from Marsh, conveys all the land, mills, and such privileges of water as he owned, to the aforesaid persons, as tenants in common. At that time, he owned the grist-mill and water privileges now claimed by the plaintiff; also, the saw-mill and privilege standing above ; and also the small piece of land at the outlet of the pond, as well as other lands lying on the stream below the defendant’s trip-hammer shop. These grantees, now being joint owners of the grist- mill and privileges, had power to divert the water or obstruct it, so as to destroy the grist-mill privilege, or to render it subservi- ent to any other use of the water. But they did not exercise such power; they permitted the water still to flow, unobstruct- ed, for the use of the grist-mill, in the same manner as it had done for more than fifteen years before. Instead of impairing or destroying this privilege, they recognised its existence while joint owners, and, as will be seen, confirmed it, in their subse- Litchfield, June. 1836. Tucke? [320]*320quent partition. The partition deed, executed by the plaintiff and Oviatt to the defendant, does not interfere with the gristmill privilege, but on the contrary, recognises it, and reserves it unimpaired.
By this deed, the defendant becomes entitled in severalty to the property bought of Roswell Marsh, “ excepting the grist mill and saw-mill, with the privileges of water and mill-yards for the same, that is below the trip hammer shop.” This reserved privilege is the same which was acquired and owned, by Roswell Marsh, for his grist-mill and saw-mill, and the same now claimed by the plaintiff. The defendant and Oviatt, in their partition deed to the plaintiff, convey to him the grist-mill and pond, without any reservation of privileges. The plaintiff and defendant, at the same time, apart and convey to Oviatt, the old saw-mill and site above the grist-mill, with the privileges of mill pond and other privileges. These several deeds, executed at the same time, and intended as a partition of the common property, must be treated and construed as one conveyance, in which there is reserved and confirmed in the plaintiff a well known and long established right, with nothing to impair it. It is the same right, which the plaintiff now seeks to protect and enforce. The defendant has not reserved, nor pretended to create, for the benefit of his trip-hammer shop, any other or greater privilege than was appurtenant to it before.
It was quite earnestly insisted, by the defendant, that the expressions in the deed from Jewett and Oviatt to Tucker, and in the deed from Tucker and Jewett to Oviatt, “ with one half of the privilege of the fall of the water from Allen Jew-ett's trip hammer shop to the grist-mill,” so divided and apart-ed, or in some way affected the old grist-mill privilege, as to secure equal rights of water to each of these former tenants in common. It is not entirely certain, what precise object the parties had in contemplation, by the use of this language ; but it is quite certain, we think, that they did not intend thereby to curtail any privileges which had before appertained to either the grist-mill or saw-mill ; at least, no reasonable construction of the language used, imports any such intent. If we were to indulge in conjecture, we might very well believe from the facts in the case, that the grist-mill and saw-mill were ancient, and equally entitled, by prescriptive right, to the use of the water in [321]*321the stream ; and that the intent of the parties was, to preserve this equality of right unimpaired. The plaintiff having after-wards purchased the old saw-mill and its privileges of Oviatt, became entitled to the whole right.
But still the defendant claims, that if the right claimed by the plaintiff has ever existed in him, since said partition, it has become extinguished, by the operation and effect of the deed from the defendant to the plaintiff and Roswell Marsh, dated May 21, 1817. By this deed, the defendant conveyed to the plaintiff and the said Marsh, all the land he owned upon said stream, including the trip-hammer shop and the land on which it stands, and where the defendant’s dam has since been erected, which causes the obstruction complained of. After the execution of this deed, the plaintiff was sole owner of the gristmill and privileges, and tenant in common with Marsh, of the trip-hammer shop and privileges attached to it. The defendant insists, that the effect of this state of the title, was, to create such a unity of title to these mills and privileges in the plaintiff, as to merge and extinguish all former or special rights and privileges appurtenant to the grist-mill, and which have never since been restored or waived. Whatever the law might be, if the plaintiff had become sole owner of the trip-hammer shop and privileges, we should hesitate much before we yielded to the claim made here, that his sole and paramount right at the grist-mill had become extinguished, by his becoming tenant in common with another in the up-stream privilege. It is not known, that in cases where the doctrine of extinguishment, by reason of unity of title, applies, it has ever been extended as far as this. We may remark, as we have done before, that the plaintiff and Marsh, by unity of action, might have rendered the grist-mill privilege subservient to the convenience of the trip-hammer shop; for the plaintiff might have yielded his sole rights for the benefit of the tenants in common. But no such surrender was made or claimed: on the contrary, the co-tenants recognised the preferable privileges of the grist-mill, and did not attempt to deny or interrupt them, but suffered the water to flow on, in its accustomed manner, for the use of that mill.
But if the plaintiff had become sole owner of the trip-hammer shop, and all the land above his grist-mill privilege, it would not have operated to extinguish his former rights; at [322]*322most, it would only suspend them. Nor do we clearly discover how it could even do this. To give effect to this claim of the defendant, it is necessary, that he should assimilate the plaintiff’s rights to mere easements or servitudes ; such as rights of way over another’s close; or any other rights which exist on the estate of one man for the benefit of another. In such cases, to be sure, unity of title will frequently either extinguish or suspend the easement. 3 Kent’s Com. 360. And such is the case of Manning v. Smith, 6 Conn. Rep. 209., upon which the defendant more especially relies; a case in which the plaintiff claimed a right of diverting the water upon the defendant’s land, from its natural course, and of conducting it through the defendant’s land to his own. But the present is a case of a very different character. The plaintiff here claims no rights or easements, in the defendant’s land. To acquire an easement by user, such user must be adverse, and in hostility to the rights of the owner of the land upon which it is claimed to exist. But the right claimed by the plaintiff, if it did not arise from prior occupancy and appropriation of the water, was acquired simply by such user and appropriation for the term of fifteen years, although such user was not so adverse as to have been an usurpation of the rights of others. Ingraham v. Hutchinson, 2 Conn. Rep. 584. The right claimed by the plaintiff, is a natural right, arising ex jure natural, and not strictly an easement.
There is, also, a distinction between rights which are of necessity, and mere easements. The former, although they may perhaps be suspended, during the existence and continuance of unity of title or possession, are not extinguished by such unity. Noy, 84. Nicholas v. Chamberlain, Cro. Jac. 121. Bull. N. P. 74. Poph. 172. 3 Bulst. 339. 1 Roll. Abr. 936. Whalley v. Thompson & al. 1 Bos. & Pul. 371. in notis. 3 Taun. 24. 2 Chitt. Bla. 26. Chancellor Kent says : “ Nor is a water-course extinguished, by unity of possession; and this from the necessity of the case and the nature of the subject.” 3 Kent’s Com. 360. And Mr. Chilly, in considering this subject, remarks, that “ there is a peculiarity relating to a claim of this nature, viz., that it never was destroyed, by unity of seisin of the land and water, and of the place in respect of which the use of the water was claimed ; the law admitting an exception to the general rule, on account of the uncontroulable [323]*323nature of water; and that the claim to water is not strictly, by grant or prescription, but ex jure nature. 1 Chitt. Gen. Pr, 215. Judges Story, in reviewing this question and the cases relating to it, in the case of Hazard v. Robinson, 3 Mason 276. expresses very nearly the same sentiments. Upon
this examination of these various deeds, we have dis- covered nothing, by which, in our opinion, the plaintiff is preclu- ded from insisting upon the grist-mill privilege, as it existed in Roswell Marsh, before and at the time of his conveyance to Tucker, Jowett and Oviatt, We do not believe this privilege has been impaired, by any of the deeds read in evidence, nor extinguished, by any unity of seisin or title. Of course, we are of opinion, that the plaintiff's evidence in support of his claim, was admissible. It was, however, suggested,
that the deed from the plaintiff and Roswell Marsh to the defendant, dated September 9, 1822, by which they re conveyed to him the same property which they had received from him, by his deed of May 21, 1817, in some way, had impaired the grist-mill privilege, or had conferred upon the defendant the rights which he has since claimed to exercise, It should here be recollected, that when this re-conveyance was made, the defendant had not erected the dam and obstruction, of which the plaintiff complains : they did not exist, at that time ; nor had the defendant, at that time, claimed any right to obstruct the water, to the injury of the plaintiff; so that the defendant acquired no new or additional rights, by virtue of this deed. A question of much
importance was suggested at the bar, which our opinion upon other controuling parts of the case, has rendered it unnecessary for us to decide. The plaintiff claimed, that if the rights of Roswell Marsh did not exist in him, the plaintiff, but had been destroyed, by the operation of some of the deeds; yet that from the 9th of September, 1822, when he and Marsh re-conveyed the trip-hammer, &c. to the defend ant, until the obstruction complained of, a period of about twelve years, he had used and appropriated the water of this stream, for the use of his saw-mill, standing upon the grist-mill site, without molestation, in its natural channel and course and that he had a right and claim to be protected in his appro- priation and enjoyment of the water, ut currere solebat; and that neither the defendant, nor any other person, had a right, Litchfield, June, l836. Tw±er [324]*324either to divert or obstruct the water to his essential injury. Upon this question, there are to be found conflicting opinions ; and there are many cases which go very far, if not entirely, to support this claim of the plaintiff. 2 Bl. Com. 403. 2 Woodeson, 391. Cox v. Matthews, 1 Vent. 237. Hatch v. Dwight, 17 Mass. Rep 289. Striker v. Todd, 10 Serg. & Rawle, 69. 3 Kent's Com. 358. Williams v. Moreland, 2 Barn. & Cres. 910. (9 Serg. & Lowb. 269.) Mason v. Hill, 3 Barn. & Adol. 304. (23 Serg. & Lowb, 76.) S. C. 5 Barn. & Adol. 1. (27 Serg. & Lowb. 11.) Frankum v. Earl of Falmouth, 6 Carr. & Payne, 529. (25 Serg. & Lowb. 526.) Buddington v. Bradley, 10 Conn. Rep. 219. King v. Tiffany, 9 Conn. Rep. 166. Palmer v. Mulligan, 3 Caines, 307. Platt v. Johnson, 15 Johns. Rep. 213. Angell on Water-courses, 39, 69. Tyler v. Wilkinson, 4 Mason, 401. Martin v. Bigelow, 2 Aikins’ Vermont Rep. 184. 3 U. S. Law Intelligencer, 164. Buller v. Reynolds, 2 N. Hamp. Rep. 257. Tinkam v. Arnold, 3 Greenl. 120.
The defendant also claimed, that admitting the right of the plaintiff, yet as the defendant had also a right, as riparian proprietor, to use the water of the stream, he had right, reasonably to use it, for the purposes of his trip-hammer shop, even if the plaintiff was subjected to some inconvenience and damage thereby. And exceptions are taken, by the defendant, to the charge of the judge at the trial, because this claim was not re-cognised by him, as the law of the case. The defendant, in support of this claim, relied much upon the case of Platt v. Johnson, 15 Johns. Rep. 213. It does not become necessary, in this investigation, to suggest a doubt of the correctness of any position assumed by the court, in that case; as, in our opinion, none of them conflict with any principle recognised by us, in this. We have placed the claims of the plaintiff entirely upon his prescriptive rights, or such as were acquired by an uninterrupted use and appropriation of the water, for more than fifteen years. In the case of Platt v. Johnson, the plaintiff relied merely upon prior occupancy ; and the counsel for the defendant notices what he supposed was a material distinction in this particular, and says: “ A purchaser of land, over which a stream of water runs, acquires a right to use the water in a reasonable manner, for the ordinary purposes of mills and machinery ; there being no ancient right or prescription in the [325]*325case. And if, in the reasonable use of the water for such purposes, the owner of land below suffers any damage, it is dam-num absque injuria." And Thompson, Ch. J., in giving the opinion of the court, acquiesces in the correctness of this distinction, and justifies the defendant in a partial diversion of the water, and says : “ Nor is there any pretence, that the plaintiff had been so long in the previous use and enjoyment of this stream, as to afford the presumption of a grant of the same beyond the boundaries of his own land.”
In the case now under consideration, the plaintiff is vindicating, and endeavouring to protect a well established and paramount right ; and such right, we have said, the plaintiff has; and if this right has been invaded, whereby essential injury has been sustained, was it ever heard of, as a justification or defence, that the defendant has behaved reasonably, in perpetrating his acts of invasion ? The plaintiff is entitled to recover, if he has sustained damage, by the unlawful acts of the defendant, unless the amount of damage is so trifling as to draw to it the application of the maxim, De minimis non curat lex. Shears & al. v. Wood, 7 J. B. Moore, 345. (17 Serg. & Lowb. 76.) Williams v. Moreland, 2 Barn. & Cres. 910. (9 Serg. & Lowb. 269.)
We are entirely satisfied, that the ruling of the judge, as well as the principles stated in the charge, were entirely correct; and that no new trial should be granted.
In this opinion the other Judges ultimately concurred; White, J., who at first dissented, declaring, that he was sat- isfied with the decision. Litchfield, June,
New trialnot to be granted. be granted.