1. The defendant claimed that the plaintiff, claiming under his father who owned one share in the saw-mill, is estopped to complain of any damage arising from its disuse. I do not understand how any such question could arise in this suit. The plaintiff does not claim damage from the disuse of the saw-mill, but because, as he alleges, the defendant has flowed his land. The ruling was therefore correct. Whatever rights were acquired growing out of the operation of the old mill expired with the disuse and decay of the mill, or, as expressed in the deed used on the trial, were to be enjoyed "during the life of the mill." It does not appear that the plaintiff has used the dam since the saw-mill went into disuse in 1859, or has in any way interfered with it, except to raise the gate in the spring for the next ten years to permit the water to be drawn off from his land during the summer months. Since 1868 or 1869, the dam has been under the exclusive control of the defendant, who has refused to allow the plaintiff to draw off the water in the summer months, as had been done previously, or to exercise any control over it. There is no ground then for claiming, as the defendant did in the argument, that for all damages in this suit growing out of the neglect to use the saw-mill the plaintiff and the defendant are jointly liable, if at all, and cannot be sued separately, nor that the neglect of the plaintiff contributed to the injury as much as that of the defendant.
2. The defendant's refusal since 1869 to hoist the gate, or permit it to be done in the spring, caused the plaintiff's land to be flowed during the summer and fall months. Whatever right of flowage the defendant or those under whom he claimed had gained to flow the plaintiff's land in the winter and spring by prescription, neither he nor they had gained *Page 123 any such right from June to October. The defendant, having assumed control of the dam in 1869 and excluded the plaintiff from its use or possession, must be liable unless he had a right to keep the water as he did keep it, and the instruction of the court in this respect was correct.
3. The case finds that the defendant had no right to flow the plaintiff's land, except such as he gained by prescription. The burden of proof was therefore on him to show not only that he had gained a prescriptive right to flow the plaintiff's land, but that he had gained such right to the extent claimed by him. The mere fact that his title was older than the plaintiff's is of no consequence. The construction asked for was equivalent to saying that the defendant's prescriptive right was established by flowing the land before the plaintiff bought it, without reference to length of time or manner of flowage. When the right to now is once proved to have been gained, either by prescription or grant, undoubtedly the burden of proof is on the person whose land is flowed to show that the right has been lost or modified. The instructions of the court to the jury that the defendant must still make out his right to how the land by proving twenty years' adverse use in the manner complained of, notwithstanding his title was older than the plaintiff's, were therefore correct.
4. As to the remaining instructions asked for by the defendant, the first has some support from the authorities in Massachusetts. Cowell v. Thayer, 5 Met. 253; Ray v. Fletcher, 12 Cush. 200; Jackson v. Harrington, 2 Allen 242; Bliss v. Rice, 17 Pick. 23. The doctrine of the latter case was dissented from in Burnham v. Kempton, 44 N.H. 90, where it is said by SARGENT, J., "that twenty years' maintenance of a dam in a particular mode is evidence of a grant or right so to maintain it, and twenty years' use of the water in a particular way is evidence of a right thus to use the water. The same proof of user which establishes the right, is equally conclusive in establishing the limitations of that right. Twenty years' accustomed flow and use of a certain stream or pond of water, is as good evidence of right to the one party as to the other. Twenty years' support, subject to the qualifications before stated of a mill-dam, is evidence of a grant to build and maintain just such a dam, constructed and used substantially in the same manner;" — see, also, Bucklin v. Truell, 54 N.H. 122.
The doctrine of the other Massachusetts cases above cited was dissented from in Gilford v. Lake Co., 52 N.H. 266, the judge who delivered the opinion of the court very pertinently remarking, — "Land-owners are not bound to make annual pilgrimages to measure the dam, and employ an engineer to calculate whether, if kept tight and full, it can be used to throw water on their land."
The second instruction asked for was given in substance. What the court added was the same doctrine expressed in different language. There is no question that a right to flow once gained is not lost by neglect to assert the right for a period less than twenty years; and this is the fair construction of the language of the instruction asked for, and of the explanation given by the court. *Page 124
The third instruction asked for does not conform to the rule as laid down in Gilford v. Lake Co. The instructions given were in the language of the court in that case. The distinction is obvious. It was material for the defendant to prove that the right to flow to the height and in the manner claimed by him had been asserted, and the flowage kept up during a period of twenty years before any controversy arose, and also to show that the flowage, to the height and in the manner claimed, was so frequent and kept up for such length of time, that the plaintiff; knowing of the existence and capacity of the dam, ought reasonably, to have understood from his observation the extent of the defendant's claim.
There was no evidence, relevant and pertinent, upon which to found the fourth instruction asked for. Goodrich v. Eastern R. R., 38 N.H. 390. It is claimed, however, by the defendant, that the operation of grist-mill since 1869, in addition to the clapboard and shingle-mill, made the request true in fact. The addition of another mill would increase the consumption of water. But the question was not whether he had merely raised the water above the top of his ancient dam. This right to flow the plaintiff's land as it had been flowed down to the time he assumed control of the dam was not questioned, but the plaintiff claimed it was limited and defined by the manner it had been flowed uniformly down to that time; and the question was, whether, with such machinery as was actually used, even though it was of such improved patterns that he was enabled to operate an additional mill with the same quantity of water, he flowed the plaintiff's land in a different manner or for a longer period in the year than he had previously done.
The last instruction asked for was also properly refused. The declaration alleges that the defendant has maintained the dam since January, 1867, and thereby made the water to overflow and drown the plaintiff's meadow, whereby the plaintiff's grass growing on said meadow was damaged, etc. The mere erection and maintenance of the dam furnished no ground to the plaintiff upon which to maintain an action at law against the defendant. The gist of the charge in the declaration as well as of the action is not the maintaining of the dam, but the flowage of the plaintiff's land; and the authorities leave no room for doubt that the declaration is sufficient for supporting this action. Curtice v. Thompson 19 N.H. 471; Sargent v. Stark, 12 N.H. 332, Gilford v. Lake Co., 52 N.H. 262; Carleton v. Redington, 21 N.H. 291.
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