Betts v. Davenport

Id an action for the the obstruction of water, by the erection of a dam, the defence was, an uninterrupted and adverse use of the water, in the manner complained of, for more than fifteen years. The plaintiff, to shew that such use had not been adverse, offered in evidence a written agreement, entered into within that period* between C., the defendant’s grantor, and D. the plaintiff’s grantor, wherein C. stipulated to lower or take down the dam in question, so as not to injure D., and in case of his neglect to do so, to pay D. 20 dollars per month.—C. was then in possession, but had previously mortgaged the premises, the law day not having elapsed. Held, that such writing, containing the declarations of the mortgagor in possession, that he did not hold adversely, was admissible, for the purpose for-which it was offered.

This was an action on the case for an obstruction, by the erection of a mill-dam, and causing the water to flow back against the wheel of the plaintiff’s mill. The cause was tried at Fairfield, December term, 1819, before Bristol, J. The dam complained of was erected by one Thomas Carr, under whom the defendant claimed, in the year 1801, or 1802, The defence was, that this dam had been kept up uninterruptedly, and adversely, for more than fifteen years before the commencement of the action. To shew, that the usir of the defendant, and those under whom he claimed, had not been uninterrupted and adverse, the plaintiff" offered in evidence a written agreement, executed by Carr to Burwell Betts, under whom the plaintiff claimed, of the following tenor: “ Whereas I, Thomas Carr, have erected a mill-dam across Norwalk river, which has raised the waters so high, that they flow back on the mill of Burwell Betts; and whereas the said Betts has brought his action to recover damages against me for erecting said dam so high ; and whereas I have this day made compensation to said Betts for the damages that he has already sustained, and for the costs of said suit: now, I the said Carr do engage with the said Betts, his heirs and assigns, that I will lower my said dam, or take down the same, so as not to injure the mill of the said Betts, by the first day of August next; and in case I do not take down said dam, or lower the same, so as not to injure the mill of said Betts, I engage to pay to the said Betts, his heirs or assigns, the sum of twenty dollars per month, for each and every month I shall continueihe same, to the injury of said Betts, his heirs or assigns. In witness whereof I have hereunto set my hand, this second day of March, 1805. jjSigned.] Thomas CarrM At the time Carr executed this writing, he was in possession of the dam now claimed by the defendant, and continued in possession about three years afterwards. It was admitted, that the defendant must reckon the possession of Carr, while he held under this agreement, to make out an uninterrupted occupancy of fifteen years. To the admission of this writing the defendant objected, on the ground that, at the time it was executed, Carr had no legal title to the premises. It appeared, that he had mortgaged the premises in 1804, the law-day being out in 1806. The judge overruled the objection, and admitted the writing for the purpose for which it was offered. The plaintiff having obtained a verdict, the defendant moved for a new trial, for the admission of improper evidence. This motion was reserved. contqnd-ed, That the agreement in question was improperly admitted, inasmuch as Carr, previous to its execution, had conveyed his title to the mortgagees. He had no possession of the premises, but in their right; and could not make any contract, oí-do any act, whereby their possession could be, in any manner, qualified, or its legitimate effects prevented. He had no power to bind them, by his agreement; and no authority to impair their rights,, by his admissions. Bull. N. P. 104. 108. contended, 1. That the evidence offered was properly received, as the admission of a mortgagor in possession. The law day not ‘having elapsed, he had a legal estate in the premises, and was at law, as well as in equity, the owner. 2. That if Carr were a mere stranger, yet if the defendant must rely upon his possession, this agreement is admissible to shew the character of that possession. Whether a man hold adversely or not, at a given time, depends upon certain acts and declarations of his, at that time. What could a tenant in possession do, or say, more effectually to determine the nature of his possession, that to enter’into a solemn agreement with another, to hold subject to his right!