Watkins v. Peck

13 N.H. 360

• Court: Superior Court of New Hampshire
• Decided: July 15, 1843
• Status: Published

Opinion

Parker, C. J.

The plaintiffs set up a right to have the water run from a spring on land formerly owned by Benjamin Bellows, through the land of the defendant, to the several houses occupied by them, and to keep in repair an aqueduct for that purpose. They produce no title deeds granting to them the waters of the spring, or the right of conveying it through the land of others ; but they rely upon an uninterrupted usage, of themselves and those whose estates they have, to take it in a certain manner, for the term of more than twenty years, as evidence of a grant, or title ; and they claim the right to continue to use the water, in the manner they have been accustomed to do for that period.

The adverse, or exclusive use of water, in a particular manner, for the term of twenty years, furnishes presumptive evidence of a grant. 2 N. H. Rep. 257, Bullen vs. Runnels. And this is as true in relation to water flowing through an aqueduct, for use at a house, by the occupants, as it is in relation to the water of a river, used for propelling machinery.

The mam question presented by the case is, therefore, whether the plaintiffs have shown such an adverse use, as entitles them to the benefit of the principle.

The evidence is clear that all the plaintiffs, or those under whom they claim, and whose estates they hold, have enjoyed, at their respective houses, the use of the water of this spring, for more than twenty years before this controversy commenced ; and that it has, during all the time they have so used it, been brought through the land formerly owned by Stevens, and now held by the defendant. To the houses of some of the plaintiffs it had thus flowed for the term of near forty years. And during all that time those who have thus received the use of it after it passed the lot now owned by the defendant, have exercised the right of repairing the aqueduct, not only from that lot to their respective residences, but also in that lot, and from thence to the spring from which it is taken.

During all that time the right of the plaintiffs, and those under whom they hold their lands, thus to take and use the water, has, so far as appears, not been contested by any one ; nor is there any express evidence of any permission asked within the time, or of any sum paid for the use, or any acknowledgement that the use was at the pleasure of those through whose land the aqueduct passed.

These facts, if they stood alone, would furnish abundant evidence of title in the plaintiffs to take and use the water as they, and others whose estates they hold, have been accustomed to do for such period, and to ask the aid of the court. 2 Vernon 390; 2 Cowen's Phil. Ev. 381, citing Gilb. Eq. R. 4, &c.; 2 Story's Eq. 204, 207.

But there are other circumstances to be considered, upon which the defendant relies, as showing that the use was not in fact adverse to the right he now sets up in the owners of the Stevens lot, to control the use of the water at their pleasure.

It appears that in 1829 the aqueduct was out of repair, and measures were taken to relay it in a more durable manner. Abel Bellows then had charge of the Stevens estate, and he declared that those who did not join in making the repairs would lose their chance to have the water. But this does not show an assertion of a right to deprive them of it at the pleasure of those of whose estate he then, had the charge. It was for the interest of that estate to have the repairs made, as the water there used was obtained by means of the aqueduct; and it seems therefore rather a call upon those who were supposed to be bound to make the repairs, and who of course had the right so to do, to perform a duty from which the Stevens estate, as well as themselves, would derive a benefit. If the testimony upon the whole shows such a use as to be evidence of a grant of the right to take the water on condition of keeping the aqueduct in repair, and permitting the occupants of the Stevens estate to take so much as they needed, or have been accustomed to do, then Mr. Bellows well declared the láw, that those who did not comply with the condition upon which they held the right, would lose the right itself.

It appears further, that during the time Bellows thus had charge of the estate for the heirs, the plaintiff Watkins applied to him to get a conveyance of a right to use the water. It does not appear that he admitted that he had no title, but the water was conveyed to his house somewhere from 1810 to 1816; and if this transaction took place within the term of twenty years after, it would be evidence of an admission that he at that time had no title, and thus might bind him, if he alone were concerned, on the ground that there was no sufficient evidence that he had had the use of the water adversely for the term of twenty years. If he had enjoyed the use adversely for a period of twenty years before the application, the case would be different, as we shall see hereafter. But none of the other plaintiffs appear to have had any connection with that application, and Watkins derives his use of the water not immediately from the land of the defendant, ¡but through other persons, who have had the use longer, and whose rights may perhaps enure to his benefit upon this occasion.

The advertisement for the sale of the estate of Cochran cannot conclude the plaintiffs, or be evidence that their enjoyment of the water was not adverse. Two of the plaintiffs are shown to have been subscribers to the paper; but a person at the present day cannot be charged with knowledge of all the contents of a newspaper, merely because he is shown to be a subscriber to it. Nor is the clause in the advertisement of a character to show them that their rights were in question, even if they had read it. One half of the water of the spring came to that place, and the occupants had the use of the water there ; and it would not have been a very violent presumption on the part of one who examined the advertisement, that the right of the heirs of Cochran, in one half of the spring, was to be sold, whatever that right might be, as was afterwards done.

But if those who saw the advertisement might have understood that a sale was to be made of their rights to the water, they were not bound, upon any such notice, to attend the sale in order to protest against it. A party who is present and sees another sell and convey property to which he may assert a title, without disclosing his title, or objecting to the conveyance, may be estopped by his silence from setting up his title ; because under such circumstances his conduct would operate as a fraud upon the purchaser, if he might afterwards take from him what he had thus permitted him to purchase, without objection, from one who claimed to be the owner. And there does not seem to be any sound difference, in this respect, between a sale of real or personal property. 2 N. H. Rep. 167, Runlet vs. Otis; 6 N. H. Rep. 521, Morse vs. Child; 11 N. R. Rep. 201, Thompson vs. Sanborn. But it must clearly appear that the sale was made with full knowledge on the part of the owner, in order thus to bind him. A supposition that a conveyance is to embrace property belonging to him, when it does not in fact, will not estop him. 12 N. H. Rep. 128, Marshall vs. Pierce.

A party who has knowledge that another proposes to sell his land, or goods, without right, if that be all, may lawfully suppose that he will relinquish his purpose, or will not be able to find a purchaser. The maxim, caveat ernptor, applies in full force, if the knowledge does not extend beyond that. It is no fraud in the owner not to leave his business, and go to another place, for the purpose of giving a caution.

Nor can the conversation at the auction affect the rights of the plaintiffs, although it appears that some of them were present. A. Bellows stated the facts, and said he did not know whether the plaintiffs could hold the water. Lyman, the agent for making sale, said they could not, as the repairs were in the nature of rent. But being asked whether he would give a deed with warranty, he said he should sell only the right of the heirs ; and that was all that he sold and attempted to convey. His previous declaration, that the plaintiffs could not hold, could not operate to enlarge the right of the heirs; and those of the plaintiffs who were present at the time cannot be estopped from claiming what he did not sell upon that occasion. If there had been a distinct sale of all the spring, and the right to control the water at pleasure, Mrs. Bellows, who was not present, would not thereby be es-topped from asserting a right to have the water flow to her house, in the manner it had been accustomed to do for near forty years ; and so long as it thus flows there, she may permit those who have continued the aqueduct from that place, to continue the use of the water, even if, by reason of their having been present at the sale, they could not assert an independent right against the defendant.

In order to estop a party from asserting a title, by reason of his presence at a sale without having made any objection, the subject matter of the sale must be something in which his interest is direct and immediate. If there be an intermediate interest, upon which his depends, and that interest is not affected, he cannot be estopped.

The repairs made upon the aqueduct, without evidence of some agreement to that effect, cannot be regarded in the nature of rent, or as an acknowledgement of a holding at the pleasure of the owner of the land through which it is laid. The fact of repairing, standing alone, is rather the assertion of a right to enter upon the land where the aqueduct is laid, for the purpose of doing an act beneficial to the party entering, than the performance of a duty to the owner of the land, or an acknowledgement of a tenancy, or use, at will under him. It must clearly be regarded as the assertion of a right adverse to the owner of the soil, were it not that in this case the owners of the Stevens place had a beneficial interest in the repair, along with the others, by reason of the use which they had of the water. But this, again, cannot show that those who made the repairs were holding the use of the water at the pleasure of him in whose land the repairs were made, and who also had the use of it. It may serve to show that they held the use, and the right to enter and repair, upon the condition of furnishing the owner of the land with a certain quantity of the water, or such quantity of water as he was accustomed to take ; and the performance of the condition may be essential to the continuance of the right.

A grant, upon condition that the grantee shall perform certain acts, may be presumed from a usage of more than twenty years to exercise the right adversely, and perform the duty connected with it, as well as an absolute grant may be presumed from the exercise of a right during that period, without any performance of a duly to the owner. 2 Aiken's R. 266, 270, Mitchell vs. Walker. Prescriptions may be upon condition. 5 Co. R. 79, Gray's Case; Cro. Eliz. 546, 563, Lovelace vs. Reynolds; 2 H. Black. 224, 234, Brook vs. Willet. And there seems to be no valid reason why usage might not show a grant of a perpetual right, upon the condition of the payment of an annual sum, or rent. Such grants are legal, notwithstanding recent circumstances are showing them to be inexpedient where they embrace large tracts of land.

The subsequent negotiation between the plaintiffs and the defendant, for a purchase, by the plaintiffs, is the strongest evidence to show that the use of the water on their part had not been adverse. If this had been within twenty years of the time when the water was first taken from the Stevens place, it must, if unexplained, be regarded as evidence that the use by the plaintiffs was permissive, and not under a claim of right, because, unexplained, it would be inconsistent with such a claim. But this was more than twenty years after the water had been carried to the houses of all the plaintiffs, unless that of Buffum forms an exception. The evidence of a right, as to the rest, founded upon the presumption arising from the use, had become perfect prior to this negotiation for a purchase, and under such circumstances the mere negotiation for a purchase cannot take away the right which is shown to have existed before that time. There was no admission, in terms, on the part of the plaintiffs, that they had not a good title. The defendant had threatened to deprive them of the water unless they paid for it. They had no paper title to show, and they might well attempt to procure better evidence of their right, without destroying such evidence of title as already existed. It may be regarded as an attempt to purchase peace, notwithstanding “ there had been no war.” The defendant, it appears, had issued a manifesto.

But it is further objected, that the heirs of Cochran were minors at the time of his death, and that one of them had not arrived at full age when the sale was made to the defendant ; and the defendant contends that no title could accrue or be shown from evidence of a use during this period, on account of this disability.

The plaintiffs answer to this, that there was the care of guardians to protect the rights of the minors, and that a prescription is not affected by the circumstance that a party against whom it operates is an infant. But the plaintiffs’ claim does not rest upon a prescription. There is no pretence that the use has extended beyond the time of memory ; and we are of opinion, that had there been no sale to the defendant, Elizabeth Cochran, whose minority continued up to the sale, might, on arriving at full age, have successfully contested the right of any of the plaintiffs, if they could not have shown a use of the water by some of them, or those under whom they claim, for a period of twenty years before her right accrued. The plaintiffs must rely upon the presumption of a grant, arising from an undisturbed enjoyment of the use of it, flowing through the land owned by the defendant, for so long a period ; which may be in the nature of a prescription, except so far as time is concerned. But / notwithstanding the remark of Mr. Justice Story, in Tyler vs. Williamson, 4 Mason’s R. 402, we are of opinion that; no grant can be presumed from an adverse use of an easement in the land of another, for the term of twenty years, where the owner of the land was, at the expiration of the : twenty years, and long before, incapable of making a grant, j whether the disability arose from infancy, or insanity. See; Gilb. Eq. Rep. 3, Guernsey vs. Rodbridges, cited 2 Cowen’s Phil. Ev. 383. Perhaps a disability intervening during the lapse of the term, but not extending to the termination of* the period of twenty years, might not be sufficient to rebut; the presumption ; but it would be absurd to presume a grant, where it was clear that no such grant could have existed. And in this case a grant by a guardian, of an easement in the land of his ward, extending beyond the limit of the guardianship, is not to be presumed ; because a guardian is not authorized to grant such incorporeal hereditaments out of the land of the ward. Nor can any grant from Cochran himself to Gage, Watkins or Buffum, be presumed; because there was no use by either of them for the term of twenty years before his death, and the neglect of his minor child to assert a right cannot raise a presumption of a grant by him. If, therefore, the other heirs were barred from contesting the right of the plaintiffs, because the circumstances warranted the presumption of a grant from them, a successful resistance on the part of their co-heir, Elizabeth, might have precluded the plaintiffs from the use of the water, on account of the indivisible nature of the right to keep the aqueduct there, and to draw the water through the land in which she had an interest; at least, this might be so until some partition of the estate, by which the portion of the land through which the aqueduct passes should be assigned to the others.

The guardian of Elizabeth joined in the sale, but it was to sell her undivided interest, and we are of opinion that this does not merge the right which she had to controvert the title of the plaintiffs, and that the defendant, in virtue of the purchase of her individual share,'may exercise any rights to which she was entitled.

Against her, then, some of the plaintiffs could not maintain a right, if the matter stood upon their use of the water alone, because there is no pretence that they had had a use of it for twenty years prior to the time when her right accrued and her disability existed. But these plaintiffs, with the exception of Buffum, take the water not directly from the Stevens lot, but from the land of Mrs. Bellows ; and if, as before suggested, she can maintain a right to have a certain quantity of water run to her land, through the aqueduct, she may use it, or permit others to use a portion of it, or let it run to waste. The defendant, in virtue of the title of Elizabeth Cochran, has no right to object that they are not entitled to the use, so long as she permits it. And this brings us to the question whether the case shows a use of the water by her, and those under whom she claims, for the period of twenty years prior to the death of Cochran.

There is a great want of precision in fixing dates, throughout the whole testimony. Some of this may have been unavoidable, from lapse of time and the nature of the case. In some instances, the time might, undoubtedly, have been fixed with greater accuracy. When we come to enquire respecting the time that Townsley first brought the water from the Stevens place, which was the commencement of the use on which the plaintiffs rely, the evidence is, that he moved into the house now occupied by Mrs. Bellows about the year 1796 or 1797 ; and that the water was taken from the “ Stevens house,” to the “ Sarah Bellows house,” within one or two years after he moved into it, as the witness believes. The logs were laid down by Townsley, and by Joseph Wells, who then occupied the “ Mead house,” to which the water was carried at the same time. This testimony stands uncontradicted ; and, upon any reasonable construction of it, the water must have been taken to those houses prior to the year 1800. 5 Greenl. R. 482, Cutts vs. King. It was carried from the house occupied by Mrs. Bellows before Townsley left it, (which was in 1812,) to Gage’s, and continued on to Watkins’, somewhere about that time. This was the situation of it at or about the time Cochran purchased the Stevens lot, and thus it continued, without objection on the part of any one, up to the time of his death, which, according to the testimony, took placed in 1820 or 1821. From the time the aqueduct was thus continued on beyond the Stevens place, those who took it, and had the use of the water, repaired the aqueduct, not only from their places of residence to that place, but beyond, to the spring. It seems clear, then, that for more than twenty years prior to the decease of Cochran, the water had been accustomed to run to the premises now owned by Mrs. Bellows and Mead, and that the owners and occupants of those estates had the uninterrupted use of it, and had also exercised the right of making repairs on the aqueduct. The presumption of a grant, to the extent of the use thus shown, arises before the decease of Cochran ; and the right of Mrs. Bellows and Mead to have the water flow as it had been accustomed to do, to their lands, is not impaired by the decease of Cochran, and the minority of any of his children.

It appears from the testimony, that the manner in which the water has been taken from the house owned by Mrs. Bellows, to those of Gage and Watkins, has not increased the quantity drawn. When it was brought to that place, by Townsley, it was received into a cistern at the bottom. A similar cistern stood, by the side of that, into which the surplus water was conveyed, by a tube, connecting them near the top. The logs laid to Gage’s were connected with the cistern which thus received the surplus water, and took merely the quantity of water which before that time had been conveyed from that cistern, “ by a board trough laying above the ground.” The rights of the plaintiffs, Gage and Watkins, therefore, as they took only the surplus water at the house of Mrs. Bellows, may not be dependent upon the length of time which they have used the water, but upon the agreement which they have made with those who have owned the estate which she possesses. It is sufficient for the purposes of this case that she admits their right, and that they appear, therefore, to be lawfully possessed of what they claim. And it is for this reason that the defendant cannot object that they have not been possessed for a term of twenty years, during which no disability existed. As he has no right to prevent the water from flowing to her land, he has no right to prevent them from using it. A change in the mode and objects of the use, without increasing the quantity, is no violation of the right. 2 N. H. Rep. 255. Whether they can lawfully enter upon the defendant’s land to repair, except as her servants, and in her right, is a question which we are not required to settle upon the present occasion. Having a right, they may join in this suit. 2 Hopkins’ Ch. R. 416, Reid vs. Gifford.

It has been objected that a prescription must be certain, being but the presumption of a grant; and that there is here too great an uncertainty as to the quantity of water to be taken, and to be left at the Stevens house. But there may be as great certainty attained here, as there is in divers cases stated in Com. Dig., Prescription, E, 3, which were held to be good prescriptions.

Upon the principles which have thus been stated, the right set up by the plaintiff Buffum is not maintained, as the branch of the aqueduct to his house is not dependent upon that which runs to the house of Mrs. Bellows, but is taken directly from the land of the defendant, and his use of the water commenced but a few years before the decease of Cochran.

As to his heirs and representatives, therefore, who have come in as parties, the bill must be dismissed.

As to the other parties, let the case be committed to a master, to report what quantity of water usually flowed to the houses of Mrs. Bellows and Mead for the term of twenty years prior to the decease of Cochran, and what was used a.t the premises of the defendant.