Woodbury v. Short

17 Vt. 387

• Court: Supreme Court of Vermont
• Decided: February 15, 1845
• Status: Published

Opinion

The opinion of the court was delivered by

Bennett, J.

In 1840 the defendant diverted a stream of water from the course, in which it was then running across his land, by reason of which the plaintiff’s land was overflowed and injured; and this action was brought to recover the damage, which the plaintiff claims, she has sustained. The case shows that ever before and until 1830 the stream had run in a given channel, and in that year the stream, in a sudden freshet, had changed its course upon the defendant’s land, and that it had been permitted to run in its new channel until 1840, when the defendant turned it back into its former channel. The question, now presented for bur consideration, is, whether the defendant, after so great a lapse of time, had such a right.

jIt is not necessary to decide, what would have been the rights of e defendant, to have turned back this stream into its former chan-pel, immediately upon its having changed its course, in 1830, and that question no opinion is intended to -be expressed; but .'/whether that right should exist after a lapse of ten years, when it may be supposed that new rights and new interests may have been acquired, is the question before us.

In Hargrave’s Tracts, De jure, maris, it is laid down, that, when a water course, running between the lands of A. and B., leaves its course and suddenly and sensibly makes its entire channel on athe land of A., it wholly belongs to him. See also Angelí on Water Courses 222, Sect. 4, on Reliction. In Ex parte Jennings, 6 Cowen 518, we have in note (a.) a full extract from Sir Matthew Hale’s treatise, De jure maris ; and on page 537 it is also said, if a river,, running between the lands of A. and B., leaves its course and sensibly makes its channel entirely in the lands of A., the whole river belongs to A. The maxim in such case is, Aqua cedit solo. In the case before us the entire stream was running upon the land of the defendant, at the point where the course was changed; and we think, that, at all events, if he would restore the stream to its former course, he must have done it within some reasonable time, and before new interests should have been naturally acquired in the course, in which it had been permitted to run.

We may, in this case, well apply the doctrine of acquiescence, which is made the ground of acquiring property in the soil, which, by the immediate and manifest power of a stream of water, is suddenly taken from one man’s estate and carried upon that of another. If it is permitted to remain upon the land, where it is carried, until it cements and coalesces with the soil, the property is changed, and there is no right to reclaim the soil, which had been carried away. The defendant, in this case, having, as it must be supposed, acquiesced in the running of this stream in its new channel, and in the creation of new interests, must not now be permitted to disturb them.

The result is, that the judgment of the county court is reversed and the cause remanded for trial.