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same, and since that period more expensive mills have been built there, which are all owned by some of the defendants. About thirty years before the filing of the bill, to wit, in 1792, another dam was built across the river at a place above the head of the Trench and about twenty rods above the lower dam, and the mills on the upper dam, as well as those on Sergeant's Trench, are now supplied with water by proper flumes, etc., from the pond formed by the upper dam. The proprietors of this last dam are also made defendants.
Without going into the particulars of the bill (for in consequence of intervening deaths and devises the cause is now before the court upon a supplemental bill, in the nature of a bill of revivor), it is necessary to state that the bill charges that the owners of Sergeant's Trench are entitled, as against the owners of the lower dam, only to what is called a waste water privilege, that is, to a right to use only such surplus water as is not wanted by the owners of the lower dam and lands for any purposes whatever. In other words, that the right of the owners of Sergeant's Trench is a subservient right to that of the plaintiffs, and takes place only as to any water which the plaintiffs may not, from time to time, have any occasion to use for any mills erected, or to be erected, by them. It charges a fraudulent combination between the owners of the upper dam and Sergeant's Trench injuriously to appropriate and use the water, and that the latter appropriate a great deal more water than they are entitled to by ancient usage, and waste the water to the injury of the plaintiffs. The object of the bill is to establish the right of the plaintiffs and to obtain an injunction and for general relief.
The principal points which have been discussed at the bar are, first, what is the nature and extent of the right of the owners of Sergeant's Trench; and, secondly, whether that right has been exceeded by them to the injury of the plaintiffs.
Before proceeding to an examination of these points it may be proper to ascertain the nature and extent of the right which riparian proprietors generaily possess to the waters of rivers flowing through their lands. Unless I am mistaken, this will relieve us from a great portion of the difficulties which incumber this cause and lead us to a satisfactory conclusion upon its merits.
I shall not attempt to examine the cases at large or to reconcile the various dicta which may be found in some of them. The task would be very onerous, and I am not aware that it would be very instructive. I have, however, read over all the cases on this subject which were cited at the bar or which are to be found in Mr. Angell's valuable work on water-courses, or which my own auxiliary researches have enabled me to reach. The general principles which they contain and support, I do not say in every particular instance, but with a very strong and controlling current of authority, appear to me to be the following:
$ 102. Riparian rights stated.
Prima facie every proprietor upon each bank of a river is entitled to the land, covered with water, in front of his bank, to the middle thread of the stream, or, as it is commonly expressed, usque filum aquæ. In virtue of this ownership he has a right to the use of the water flowing over it in its natural current, without diminution or obstruction. But, strictly speaking, he has no property in the water itself, but a simple use of it while it passes along. The consequence of this principle is that no proprietor has a right to use the water to the prejudice of another. It is wholly immaterial whether the party be a proprietor above or below in the course of the river; the right being com
mon to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all. The natural stream, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed by operation of law to the land itself. When I speak of this common right, I do not mean to be understood as holding the doctrine that there can be no diminution whatsoever, and no obstruction or impediment whatsoever, by a riparian proprietor in the use of the water as it flows, for that would be to deny any valuable use of it. There may be and there must be allowed of that which is common to all, a reasonable use. The true test of the principle and extent of the use is whether it is to the injury of the other proprietors or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general and valuable use of the water, perfectly consistent with the existence of the common right. The diminution, retardation or acceleration, not positively and sensibly injurious by diminishing the value of the common right, is an implied element in the right of using the stream at all. The law here, as in many other cases, acts with a reasonable reference to public convenience and general good, and is not betrayed into a narrow strictness subversive of common sense, nor into an extravagant looseness which would destroy private rights. The maxim is applied, sic utere tuo, ut non alienum lædas.
But of a thing common by nature, there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy where the first occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law annexes to the riparian proprietors the right to the use in common as an incident to the land; and whoever seeks to found an exclusive one must establish a rightful appropriation in some manner known and admitted by the law. Now this may be either by a grant from all the proprietors whose interest is affected by the particular appropriation, or by a long exclusive enjoyment without interruption, which affords a just presumption of right. By our law, upon principles of public convenience, the term of twenty years of exclusive uninterrupted enjoyment has been held a conclusive presumption of a grant or right. I say of a grant or right, for I very much doubt whether the principle now acted upon, however in its origin it may have been confined to presumptions of a grant, is now necessarily limited to considerations of this nature. The presumption is applied as a presumption juris et de jure, wherever by possibility a right may be acquired in any manner known to the law. Its operation has never yet been denied in cases where personal disabilities of particular proprietors might bave intervened, such as infancy, coverture and insanity, and where, by the ordinary course of proceeding, grants would not be presumed. In these and in like cases there may be an extinguishment of right by positive limitations of time, by estoppels, by statutable compensations and authorities, by elections of other beneficial bequests, by conflicting equities and by other means. The presumption would be just as operative as to these modes of extinguishment of a common right as to the mode of extinguishment by grant.
These are the general principles which appear to me applicable to the present case. They will be found recognized in many cases; but are in none more fully and accurately weighed and discussed than in Bealcy v. Shaw, 6 East, 208; Williams v. Morland, 2 Barn. & Cresw., 910, and Wright v. Howard, 1 Simon & Stuart, 190, in England; and in Ingraham v. Hutchinson, 2 Conn., 584; Merritt v. Parker, 1 Coxe, 460; Palmer v. Mulligan, 3 Caine, 307; Platt v. Johnson, 15 Johns., 464, and Merritt v. Brinkerhoof, 17 Johns., 120, in America.
With these principles in view, the general rights of the plaintiffs cannot admit of much controversy. They are riparian proprietors, and as such are entitled to the natural flow of the river without diminution to their injury. As owners of the lower dam and the mills connected therewith they have no rights beyond those of any other persons who might have appropriated that portion of the stream to the use of their mills. That is, their rights are to be measured by the extent of their actual appropriation and use of the water for a period which the law deems a conclusive presumption in favor of rights of this nature. In their character as mill owners they have no title to the flow of the stream beyond the water actually and legally appropriated to the mills; but in their character as riparian proprietors they have annexed to their lands the general flow of the river so far as it has not been already acquired by some prior and legally operative appropriation.
No doubt then can exist as to the right of the plaintiffs to the surplus of the natural flow of the stream not yet appropriated. Their rights as riparian proprietors are general, and it is incumbent on the parties who seek to narrow these rights to establish by competent proofs their own title to divert and use the stream.
$ 103. There may be a right to water of a very limited nature.
And this leads me to the consideration of the nature and extent of the rights of the trench owners. There is no doubt that, in point of law or fact, there may be a right to water of a very limited nature and subservient to the more general right of the riparian proprietors. It may arise from grant and be affected by any considerations, conditions and modifications which the assent of the parties may impose; and where no such grant is established by written instruments it may be inferred, like other grants, from long usage and be gov. erned by the limitations of that usage. The case of Bateson v. Green, 5 T. R., 411, is certainly good law, but it introduces no new principle. The doctrine of subservient rights and uses is probably as old as the common law itself. But in questions of usage the fact how much water has been actually used is not always decisive of the nature and extent of the right. Nor are occasional interruptions of the use, under peculiar circumstances, conclusive of a superior right to control and limit the entire use, to suspend it at pleasure or destroy it at discretion. The nature and object and value of the use are very material ingredients to explain and qualify the effect of such interruptions. It is not, for instance, to be presumed that valuable mills will be erected to be fed by an artificial canal from a river, and the stream be indispensable for the support of such mills, and yet that the right to the stream is so completely lodged in another that it may be cut off, or diminished, or suspended at pleasure; but if there should not be water enough for the progressive wants of all, the riparian proprietor should reserve to himself the power of future appropriation for his own exclusive use. In such cases reasonable presumption must be made from acts in their own nature somewhat equivocal and susceptible of different interpretations. The interruptions may arise from
resistance to an attempt, by the canal owner, to extend the reach of his dam farther into the river for the purpose of appropriating more water, or from a desire to prevent undue waste, in dry seasons, to the injury of the riparian proprietor. But the presumption of an absolute and controlling power over the whole flow, a continuing power of exclusive appropriation from time to time, in the riparian proprietor, as his wants or will may influence his choice, would require the most irresistible facts to support it. Men who build mills and invest valuable capital in them cannot be presumed, without the most conclusive evidence, to give their deliberate assent to the acceptance of such ruinous conditions. The general presumption appears to me to be that which is laid down by Mr. Justice Abbott in Saunders v. Newman, 1 Barn. & Ald., 258: “When a mill has been erected upon a stream for a long period of time it gives to the owner a right that the water shall continue to flow to and from the mill in the manner in wbich it has been accustomed to flow during all that time. The owner is not bound to use the water in the same precise manner, or to apply it to the same mill; if he were, that would stop all improvements in machinery. If, indeed, the alterations made from time to time prejudice the right of the lower mill [i. e., by requiring more water], the case would be different."
In this view of the matter, the proprietors of Sergeant's Trench are entitled to the use of so much of the water as has been accustomed to flow through that trench to and from their mills (whether actually used or necessary for the same mills or not), during the twenty years last before the institution of this suit, subject only to such qualifications and limitations, as have been acknowledged or rightfully exercised by the plaintiffs as riparian proprietors, or as owners of the lower mill.dam, during that period. But here their right stops; they have no right farther to appropriate any surplus water not already used by the riparian proprietors, upon the notion that such water is open to the first occupiers. The surplus is the inheritance of the riparian proprietors, and not open to occupancy.
The question, then, resolves itself into a matter of fact:- What has been the quantity accustomed to flow in the trench, and what the qualifications and limitations accompanying the flow during this period?
It appears to me most manifest, from the general current of the evidence, that the trench proprietors do not hold a mere waste-water privilege in the sense which the plaintiffs attribute to those terms. It would be almost incredible that a priority of right should be reserved to the plaintiffs, as riparian proprietors, to use the water of the stream for any new mills to be erected from time to time by them, so as to entitle them, at their choice, to divert the whole from the trench. Nothing but the clearest proofs could establish such a right, going, in the event, to the complete destruction of the mills erected on the trench. So far from such a pre-eminent right, as it is called, being justified by the evidence, it appears to me to be encountered by it at almost every step. The acts of the parties, at the different periods of their ownersbip, are irreconcilable with such a supposition. The answers of the defendants positively deny it. The most that can be pretended from any portion of the evidence is that the proprietors of the mills on the lower dam did in dry seasons, when the water was scant, remove the temporary dams erected by the trench proprietors, to gain at those periods an additional supply of water. But these acts of interruption seem confined to the temporary dam so erected, and not designed as interruptions of the ordinary flow of the water by means of the
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permanent dam, or otherwise, into the trench. And what is very material, they were interruptions for the purpose of supplying their mills, then existiny on the lower dam, with water. If, therefore, we give the fullest effect to this assertion of pre-eminent right, it must be limited, as it was exercised, to the uses of the miils then in existence, that is, to the usual priority of supply, which, in a conflict of right and a deficiency of water, they were accustomed to take and require. Such a pre-eminent right, founded merely in usage, for particular mills, must be confined to those mills, and cannot be admitted as proof of a general unlimited right over all the water for all future mills. If the trench owners could only claim a waste-water privilege, it was of wastewater not then appropriated or used by existing mills. In this view of the case, it would not help the plaintiffs; for it is not shown that the old mills would have sustained any injurious loss of water if no new mills bad been built by the plaintiffs, requiring a further supply. But it cannot be disguised that even this claim of right, so limited, has many difficulties to encounter. There is no uniform, clear, decisive evidence to support it. The evidence is contradictory or inconclusive. There has been no acquiescence in the acts of interruption of such an unequivocal nature, and for such a period, as would justify the court to infer any admission of right by the trench owners, or any original reservation on the part of the plaintiffs. On the contrary, the mat ter of right seems always to have been in contestation. The most that the court can say is that the claim of pre-eminent right is suspended in doubt; and that it ought not, under such circumstances, to give relief against the positive denials of the owners.
$ 104. Trench owners are entitled to only the accustomed flow from the river, and have no right to increase the flow.
My opinion accordingly is that the trench owners have an absolute right to the quantity of water which has usually flowed therein without any adverse right on the plaintiffs to interrupt that flow in dry seasons, when there is a deficiency of water. But the trench owners have no right to increase that flow; and whatever may be the mills or uses to which they may apply it, they are limited to the accustomed quantity, and may not exceed it.
What that quantity is has not been ascertained by any precise admeasurement. The trench owners in their answer do not pretend that they have acquired any new rights by an additional uninterrupied use within the last twenty years. On the contrary, they assert that the quantity which now flows is in conformity to the ancient usage, and does not exceed it. They assert “that the present gate-bole which leads the water from the said great flume [of the upper dam] into said trench is about four feet wide and fifteen or sixteen inches deep; that the said gate-bole was made about one year after said upper dam was built, and that the diversions thereof have never been altered from the time the same was first made as aforesaid, to the present time.” If the fact be so, it furnishes some elements for a very correct admeasurement of their rights. The principal difficulty in applying it as an absolute measure arises from the fact of there having been a gate in this gatehole put there at the time of the hole itself being made. This gate was removed at least ten years, and more probably from fifteen to twenty years, before the filing of the bill. The plaintiffs insist that this gate was designed to regulate the quantity of water to which the trench owners were entitled, and was adjusted accordingly. The latter admit the fact of its existence, but assert its removal twenty years ago, and that "it was placed in said gate-hole