Wilder v. Clough

The deed under which the defendant claims contains these words: "said Shaw to have the privilege of flowing said tract up to the said ash tree." The Squam river runs in a direction nearly west at this place towards the Merrimack. There are upon it two mill privileges, — one owned by the plaintiffs, and one owned by the defendant, — the defendant claiming under the above mentioned deed from Shepard to Shaw, and the plaintiffs claiming under a deed from Shaw to Shepard. The dividing line between the two privileges, as fixed by these deeds, was a continuation of the east side line of the tract of land north of the Squam river, purchased by Shaw of Gordon and Merrill, and passing by an ash tree at or near the bank of the river at the south-east corner of said tract. It appears from the deeds that the parties, Shaw and Shepard, each had or claimed to have some rights in a strip of land on the south bank of the river. The defendant claims the right to flow so as to raise the water as high as the bottom of the ash tree. The plaintiffs claim, and the court below held, that his right to raise the water was limited by the line fixed upon as the dividing line between the privileges, and that the defendant could not rightfully, by means of his dam, flow or raise the water on the plaintiffs' side of the line. By the deed of Shepard, all his rights in and to the Squam river below that line are conveyed to Shaw. The deed next conveys all the grantor's right to a strip of land three rods wide south of the river, excepting a strip three rods wide extending towards the west down the river three rods; and this tract, so reserved, the said Shaw is to have the privilege of flowing up to the ash tree. Shaw, by his deed, conveys to Shepard all his rights in a strip of land four rods wide, extending three rods down the river on the same boundary line, and also a little above the line; so that in point of fact Shaw covers by his deed the very same strip of land south of the Squam river which Shepard conveys to Shaw, and Shaw reserves the right of flowing said tract below said ash tree. It is plain that these portions of the two deeds cover the same strip of ground, giving the ownership of the soil to Shepard and the right of flowing to Shaw; and it is plain that exactly the same right of flowing is granted by Shepard's deed to Shaw by the words "up to the ash tree," as is reserved in Shaw's deed to Shepard by the words "below the ash tree." Shaw's deed also grants all his right in the bed of the Squam river above said ash tree, which, according to the defendant's construction, would put the bed of the Squam river somewhere vertically above the ash tree. By these deeds the east line of the Gordon and Merrill lot was made the boundary line between the two privileges, Shaw getting that part *Page 362 of the bed of the stream which was situated below, i. e., west of the line drawn through the ash tree, and Shepard getting that part of the river east, i. e., above the line drawn through the ash tree. Shepard got the ownership of a strip of land three rods wide in his deed and four rods wide in Shaw's, and Shaw got the right to flow that strip of land as far up as he got the right to set back the water in the bed of the stream, that is, below and as far up as the same line. It does not appear that the vertical height of this boundary line is concerned at all in the matter. The defendant's right to raise the surface of the water, or to cause it to set back, is limited by that line. If he could always raise the water as high vertically as the foot of the ash tree, he would in time of low water set the water back on to the plaintiffs' privilege, and might materially interfere with it. So, if he were limited not to go above that line vertically in time of ordinary high water, his privilege might be materially curtailed. What he gets by these conveyances is, the right to change the level of the stream as far east as that line, so as to make it below that line nearly on a level with the water at his dam, and that whether at low, medium, or ordinary high water, and he gets a corresponding right to cover with water the strip of land south of the river. Suppose that the water in the Squam river, at the point where the line crosses it, were at its deepest point two feet deep, and the defendant's dam were so constructed as at ordinary flow of water not to alter that level: if in time of low water the defendant should so arrange his dam as to keep the water at a depth of two feet, it is obvious that he would flow back the water on to the plaintiffs' privilege and interfere with the operation of their mill, so that if this were the criterion the plaintiffs might be materially injured, — while, on the contrary, if in, times of high water the defendant could not raise the water at that point above that line, he might lose the whole of his privilege. As it appears by the case that the defendant's grantor occupied both privileges within twenty years next before the date of the writ, there could be no adverse user for twenty years, and of course no right could be gained. Odiorne v. Lyford, 9 N.H. 502; Burnham v. Kempton, 44 N.H. 78; Gilman v. Tilton, 5 N.H. 231; Angell on Watercourses, sec. 340.