Williams v. Wadsworth

51 Conn. 277, 1884 Conn. LEXIS 46

• Court: Supreme Court of Connecticut
• Decided: June 13, 1884
• Status: Published

Opinion

Pabdee, J.

In 1851 Augustus Ward and wife, owners of land upon a brook which in winter will turn the wheel of a grist-mill, but in time of severe drought will pass through an orifice one inch and a half in diameter, conveyed by deed to the plaintiff the right to enter upon their land, and construct and maintain thereon, without limit as to time, works for the diversion over it to his land not riparian of as much water as will pass through a pipe three inches in diameter.

In 1852 he built a dam and from a reservoir laid a pipe two inches in diameter, and began, and to this present has continued, to divert water through it adversely as against all persons whose rights could be affected thereby, — until 1856 to the house occupied by him and the premises therewith connected, since that year to the houses of persons who have paid him for it. Prior to the close of 1857 all lower proprietors upon the stream gave him by deed, perpetual release from'all claim for damages by the diversion.

The defendant, ah upper owner of about an acre of land upon the brook, began in 1881 to divert as much water as will pass through a pipe two inches in diameter to his farm, about one half mile distant, no part of which is riparian, and there uses it at his house and barn, for a fountain, for irrigating his lawn, and for watering the street; returning none to the brook, but wasting a considerable portion. In the summer this use injures the plaintiff, and he asks that the defendant be restrained by injunction from such diversion as will prevent the supply of his two inch pipe. The court passed the following decree:

“Whereupon it is adjudged that, until this court shall make further and other order in the premises, the defendant be, and hereby is, strictly enjoined and commanded, at all times after the 31st of May, 1883, when the whole volume of water running and flowing in said stream into the defendant’s said reservoir will pass through an orifice two and one half inches or less in diameter, to desist from detaining or diverting from its natural course, above the said dam of the plaintiff, a larger quantity or portion of the said water than will pass through an orifice or aqueduct one half of an inch in diameter, unless he return the surplus to the said stream before it reaches the plaintiff’s said dam, on penalty of twenty dollars for every day or fraction of a day that he shall detain or divert a larger quantity or portion of said water in violation of this injunction; and at all times after the said 31st day of May, 1883, when the volume of water running and flowing in said stream into the defendant’s said reservoir is so large that it will not pass through an orifice two and one half inches in diameter, the defendant is strictly enjoined and commanded, until this court shall make further and other order in the premises, to desist from detaining, or diverting from its natural course above the said dam of the plaintiff, a larger quantity or portion of the water so running and flowing into said reservoir than the excess aboAre the quantity or portion necessary to fill an orifice and supply an aqueduct two inches in diameter, unless he return the surplus of the water diverted to the said stream before it reaches the plaintiff’s said dam, on penalty of twenty dollars for every day or fraction of a day that he shall detain, or divert a larger quantity or portion of said water in violation of this injunction.” The plaintiff appealed for reasons as follows:—

“ 1. That the plaintiff is entitled to maintain his pipe as constructed, and draw water through it at all times, and to have the full flow of the stream whenever needed for that purpose.

“ 2. That the defendant has no right to divert the stream for the purposes found in the case, so as to impair the supply of the plaintiff’s pipe.

“3. That the defendant by purchasing, on September 9th and 10th, 1881, two parcels of land, being in all about seven eighths of an acre, upon the stream above the plaintiff’s well, did not thereby acquire any right to divert the water of said stream and conduct the same away from said riparian premises, a distance of about one hundred and seventy-two rods, to the house of the defendant in Farming-ton village, so as thereby to impair the supply of the plaintiffs aqueduct.”

The defendant appealed for reasons as follows :—

“ 1. The court should have held that the plaintiff could not maintain the present action in consequence of the proceedings in bankruptcy, and also those in insolvency, as stated in the said finding.

“ 2. That the plaintiff could not recover in consequence of the legal effect of the conveyance to Catherine Vorce.

“3. That the court should have held that the defendant, as riparian proprietor, had a right to use the water in the manner in which he had used it.

“4. That the plaintiff was not a riparian proprietor, and, as against the defendant, has no equitable right to prohibit the defendant from using the water.

“ 5. That no such injury was shown to result to the plaintiff by the defendant’s use of the water as would warrant a decree for the plaintiff.

“ 6. That after the notice of September 11th, 1881, the plaintiff was not entitled to relief by injunction.

“7. Upon the facts found the court should not have directed said water to be measured above the defendant’s reservoir, but below it, as such order prevented the defendant from the use of the water so collected in said reservoir.

“ 8. Upon the facts found the court ought to have held as matter of law, that the defendant, as against the plaintiff, was entitled to the use of so much water as would flow through the pipe so laid by the defendant.

“ 9. Said judgment is erroneous, because it does not direct any method of determining the amount of water flowing in said stream after May. 30th, 1881.

“ 10. Also, because the court assumes to fix an arbitrary amount of penalty for breach of the injunction, without regard to any knowledge or intention on the part of the defendant, and without furnishing any means for him to discover whether he is guilty of a breach of the injunction or not.

“11. The court should have admitted in evidence the deed of Austin Hart, trustee, to the defendant.” 0

Being a riparian owner the defendant has the right to consume water upon riparian premises for drinking, culinary and other domestic uses, and for the watering of animals; this right taking precedence of any right below. But this use is to be confined to riparian land. This limitation applied to a brook stands upon the necessity for a restraining rule in order to secure something for all, and upon the presumption that the brook will supply the absolute needs of as large an area of land as is usually held in -riparian ownership.

If land not riparian may draw to itself, equally with land riparian, water for man and beast thereon, because it is in the possession of a riparian owner, then land not riparian may take precedence of land riparian and deprive it of water for either man or beast. That such a possibility is within the defendant’s claim shows that it puts in jeopardy the well established rule that the right of riparian land to water for man and beast shall yield to nothing except like needs upon like land above.

By the deed thus passed to the plaintiff a right to water, not as an appurtenance to a particular parcel of land, but to be used in any place and for any purpose, so long as he did not interfere with the rights of others; and with it passed as much right and interest in the soil as is reasonably necessary for the enjoyment of the grant. In Lonsdale Co. v. Moies, 21 Law Reporter, 664, the court said: “If I have a spring I may sell the right to take water from it by pipes to one who does not own the land across which the pipes are to be carried, and I may restrict the use to a particular house or not as I please. * * Incorporeal hereditaments may be inseparably annexed to a particular messuage or tract of land by the grant which creates them and makes them incapable of separate existence; but they may also be granted in gross, and afterwards for purposes of enjoyment be annexed to a messuage or land, and again severed therefrom by a conveyance of the messuage or 'land without the right, or a conveyance of the right without the land.” See also Dewitt v. Harvey, 4 Gray, 489. In Ingraham v. Hutchinson, 2 Conn., 584, the marginal note is as follows: — “Though everjr person has independent of grant or prescription a right to the use of water on his own land in its natural course and quantity and may sustain an action for its diversion or obstruction to his prejudice, yet a special right, differing from the general one and paramount to the general rights of other owners of land on the same stream, may be ■acquired by an exclusive enjoyment for fifteen years; and to this end it is not necessary that such enjoyment should have been adverse to the claims of those affected by it.” And the court said: — -“A special right different from the general one may be acquired by an adjoining proprietor by grant or by such length of time as will furnish presumptive evidence of a grant. In England it has been decided that twenty years exclusive enjoyment of water in a particular manner affords a conclusive presumption of a right in the party enjoying it, derived from some individual having the power to make it, or from the legislature; and in this state fifteen years exclusive enjoyment will furnish the same evidence. * * It is however contended bjr the counsel for the defendant that to gain such exclusive right by possession it must be adverse to the claim of the person to be affected by it, so that he could maintain a suit; that otherwise there is no acquiescence; and that in this case there is no such adverse possession. But the rule is laid down without such qualification; the exclusive enjoyment alone is sufficient to create the right. In the case of Sherwood v. Burr et al. the defendants could never have maintained an action, for the dam of the plaintiff was no injury to them; yet the court held the possession to be sufficient to gain an absolute right.” In 3 Kent’s Commentaries, side page 442, it is said: — “The owners of artificial works may acquire rights by áctual appropriation as against the riparian proprietor, and the extent of the right is to be measured by the extent of the appropriation and the use of the water for a period requisite to establish a conclusive presumption of right. In such a case the natural right of the riparian proprietor becomes subservient to the acquired right of the manufacturer. The general and established doctrine is that an exclusive enjoyment of water or of light or of any other easement in any particular way for twenty years, or for such other period less than twenty years which in any particular state is the established period of limitation, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person which might have been but was not asserted.” In Elliot v. Fitchburg R. R. Co., 10 Cush., 191, a riparian owner granted to the defendants the right to enter upon his land and divert water to their own premises. The court said that he and the defendants together held the whole right, and that it was M to be considered in the same manner as if the defendants owned the land.”

The foregoing decision by this court concerned rights which had, and in the opinion of the court of necessity had, air adverse use for fifteen years as their foundation. The present plaintiff will have no occasion for complaint if we subject him to the operation of that rule, as his use is for a longer period. Therefore we say that, although he is not a riparian owner, yet inasmuch as he purchased from one who is, the right to enter upon land of the latter and divert the stream from the natural, through an artificial channel to land of his own, by such diversion and use for more than fifteen years he acquired the right to have the stream then come to him in its accustomed flow, which right the defendant, an upper riparian ■ owner, must so far respect, that he may not injure it by subsequently commencing uses on land not' riparian. And the plaintiff may protect this right by proceedings instituted in his own name. We have had no occasion to consider, and therefore do not determine, that under the circumstances of his purchase his use must hare been for fifteen years before he could acquire any right which would have judicial recognition and protection.

In 1862 certain creditors of the plaintiff prayed the court of probate for the district of Farmington to vest his property in a trustee under the act for the relief of insolvent debtors. A trustee was appointed. Subsequently the plaintiff settled with the petitioning creditors and paid the expense of the proceedings, and the same were discontinued in 1863 by the prohate court. The plaintiff remained in the undisputed and exclusive control of the water rights during the official life of the trustee, the latter neither taking nor claiming possession. On January 5th, 1863, the trustee conveyed to the defendant the premises then occupied by the plaintiff, in which the acqueduct then terminated, by deed describing “a certain piece of land with the buildings thereon standing * * with the appurtenances thereof,” but making no mention of the aqueduct, or of the easement or of water rights.

The plaintiff had permission from the owners of the land to carry water over the same to his house. Under the grant of “ land with the buildings thereon standing,” this privilege did not pass; not being embraced by the premises, it is not in the word “ appurtenances.” In Manning v. Smith, 6 Conn., 289, a grantor conveyed land upon which ended a pipe carrying water from a spring upon land reserved by him in the deed; the words “to have and to hold the premises with all their appurtenances ” followed the description of the land. The grantee insisted that he had by these acquired the right to have the water flow to his land. The court said : — “ It is insisted that the deed * * conveyed the easement in question. The words of the deed describe only the land ; it is added ‘ to have and to hold the premises with all their appurtenances' The deed * * did not convey any right to the easement unless it belonged naturally and necessarily to the premises. If the conduit had been placed there a month previously, by a stranger or by the defendant, it would hardly be said that it was a part of the freehold. It would not be strictly necessary to its enjoyment. Co. Litt., 216, 122 a. By the grant of a messuage with the appurtenances a shop annexed to it for thirty years dobs not pass, unless it be found to be a part of the messuage. Bryan v. Weatherhead, Cro. Car., 17. The- subject matter of the grant in the deed is the land, and that does not include the easement as we have seen. Can then the thing granted be enlarged by the words ‘ to have and to hold with the appurtenances ? ’ It is in the premises of the deed that the thing is really granted. 3 Cruise Dig., 47, sec. 51. * * It is the office of the habendum sometimes to enlarge the estate granted but never to extend the subject matter of the grant'. * * The plaintiff, grantee of the defendant, * * might have secured to himself this privilege by express grant or by covenants. He has taken this deed and it is not for the court to give it a construction not authorized by law.”

In 1868 the plaintiff was adjudicated a bankrupt upon his own petition, and' there was a deed from the register in bankruptcy to the assignee. The latter neither took possession of the water rights nor treated them as assets in his hands. The plaintiff paid all proven claims in full, together with costs and expenses of the 'bankruptcy proceedings, and received a discharge in 1871, since which lime he has been in possession of the water rights excepting such as he subsequently conveyed to Mrs. Vorce. It is the claim of the defendant that the plaintiff is barred from recovering, first, by the proceedings in insolvency, secondly, by those in bankruptcy, and thirdly by his deed to Mrs. Vorce.

But both the trustee in insolvency and the assignee in bankruptcy take the property of the debtor upon a trust, first to apply so much thereof as is necessary to the payment of proven debts and the attendant expenses; and secondly, to return whatever surplus may remain to the original owner. After the discontinuance of the proceedings in insolvency by the probate court, and after the plaintiff had obtained releases from all proven claims and a discharge in bankruptcy, and had in both instances paid the expenses, the trustee and the assignee each held the water rights upon a barren trust to reconvey upon request. The beneficial interest and right to possession are in him; and possession in fact has never been interrupted. Under such circumstances, even if he has omitted to ask for or has failed to obtain reconveyance, and neither trustee nor assignee moves in the matter, a court of equity will meanwhile upon his request and in his behalf protect the rights from threatened destruction or injury.

On April 1st, 1872, the plaintiff conveyed the dwelling house and premises owned and occupied by him at the time of the completion of the aqueduct and in which it originally terminated, together with the privilege of using water needed in and upon the same to his daughter Catharine D. Vorce, who has since occupied the same. Thereafter the plaintiff resided in a house upon adjoining land, and at both houses water has been drawn from the aqueduct for domestic and culinary purposes, for the use of animals, and for fountains and irrigation.

It is the claim of the defendant that the plaintiff by his deed to Mrs. Vorce divested himself of all title to the water rights. The plaintiff for valuable consideration sold the right to draw a specified quantity of water, retaining the remainder. That remainder is a valuable property; it constitutes a right which gives him a standing in court.

The defendant having knowledge that the plaintiff disputed his right to divert the water in the manner contemplated and would endeavor to prevent it by legal proceedings, notified him that he intended to take the water to his dwelling house, and requested him to institute legal proceedings by way of prevention before expense should be incurred. The plaintiff disregarded the request, and the defendant insists that he should not now be heard by way of objection. But the defendant was not misled either by speech or silence; on the contrary he had positive and timely warning that his intention put in execution would be an. invasion of the plaintiff’s rights for which legal redress would be sought. Under such circumstances the .warning is equivalent to legal proceedings; thenceforth the defendant assumed the risk attendant upon his action.

The defendant should be enjoined against such use of the water upon land not riparian as will prevent the supply of the plaintiff’s two-inch pipe.

There is therefore error in the decree complained of.

In this opinion the other judges concurred.