Thomas v. Hill

Howard, J.

This is an action of the case, for diverting water from the plaintiff’s mill, and is submitted upon an agreed statement of facts.

The right of diverting a portion of the water of Royall’s river from the mill, by a dam, through an artificial channel, was asserted and enjoyed, by the defendant, and those under whom he claims, from 1780 to 1800, and the right was then unquestionable. In the year 1800, the dam was carried away by a freshet, and the artificial channel entirely obstructed to the passage of water ; and the “iron-works privilege,” which had been supplied by the water previously diverted, was “abandoned, and so remained up to the year 1845, when the dam was rebuilt, and the channel re-opened by the defendant.”

The plaintiff, in his own right, had the quiet possession and enjoyment of all the water power, obtained from the running of the waters of the river in their natural channel, at the site of his mill, and dam, undiminished by the exercise of any rights claimed by the defendant, from 1800 to 1845, when the defendant built the dam, and diverted the water as set forth in the declaration.

From this uninterrupted enjoyment of the use of the entire water power of the river, at his mill and site, without the exertion of any adverse use, right or privilege, a grant might fairly be presumed, or a just presumption of right might arise, in favor of the plaintiff’s claim, sufficient to establish it at law. Campbell v. Wilson, 3 East, 294; Bealey v. Shaw, 6 East, 208; Balston v. Bensted, 1 Camp. 463; Hilary v. Waller, 12 Ves. 265; Gray v. Bond, 2 Brod. & Bing. 667; Hazard v. Robinson, 3 Mason, 272 ; Tyler v. Wilkinson, 4 Mason, 402 ; Angell on Watercourses, 76, 77, 94; 1 Greenl. *254 Ev. sect. 17; Bolivar Man. Co. v. Neponset Manuf. Co. 16 Pick. 241; Cruise’s Dig. T. 31, chap. 1, sect. 26, 43; Bracton, L. 4, chap. 48, sect. 3.

But, independent of presumptions of law, the statute, (R. S. chap. 126, sect. 1, 2,) furnishes a complete bar to the claim of the defendant. The language is, “ no dam shall be erected to the injury of any mill lawfully existing, either above or below it, on the same stream ; nor to the injury of any mill site, on which a mill, or mill dam shall have been lawfully erected and used, unless the right to maintain a mill, on such last mentioned site, shall have been lost or defeated by an abandonment or otherwise.” The plaintiff’s mill was lawfully existing upon the river, and the erection of the dam by the defendant, some ten rods above it, caused an injury to the mill, by diverting the water, in violation of this statute.

Judgment for the plaintiff.

The defendant to be heard in damages.