Wheeler v. Wilder

Allen, J. The conveyance, under which the defendant justifies the acts complained of, was the grant of an easement, upon land held by the plaintiff, to dig a canal of sufficient width to carry away the water from the defendant’s mill, and to be one and one fourth rods wide if needed. No question is made of the grantee’s right to go upon the plaintiff’s land, and in a suitable manner dig the canal, and subsequently, from time to time, make necessary repairs upon it. The construction of the canal originally of the width of a rod only, and its continuous use of that width by the successive owners of the mill for more than fifty years, taken in connection with the occupation of the land for beneficial uses up to the banks of the canal, by the plaintiff and those under whom he claims, during the same time, is made the basis of a claim by the plaintiff to hold exclusive possession of the land up to the lines of the canal as originally constructed. It is not a claim that the plaintiff by prescription has acquired the right against the defendant to the additional four feet, but that the defendant’s grantors having constructed the canal of only a rod in width, and having acquiesced in the occupancy of the land up to that line by the plaintiff and his grantors, an election and practical location of the boundaries of the easement were made, and the defendant could not lawfully enlarge them. The defendant’s grantors and those who owned the plaintiff’s laud might have agreed upon the limits of the canal and easement, and if such agreement had been made it would now be binding upon the defendant. Sawyer v. Fellows, 6 N. H. 107; Orr v. Hadley, 36 N. H. 579; Dudley v. Elkins, 39 N. H. 78. The possession of the plaintiff and his grantors, long continued, up to the line of the old canal, and the acquiescence of the owners of the easement, was evidence from which the referee might have found an agreement to a line, but it was not conclusive. Hobbs v. Cram, 22 N. H. 130, 134; Knight v. Coleman, 19 N. H. 118. If the canal was constructed of a less width than the grant permitted, for convenience or for a temporary purpose, and with no intention to fix a limit to the necessities of the mill or the use of the water-power, the plaintiff’s possession was not evidence of an agreed line. Clough v. Bowman, *8 15 N. H. 504, 511. Tbe referee has not found an agreed- line for the canal and easement, nor inferred one from possession and acquiescence. Nothing in the grant limited the necessities of the mill to anything, short of the whole water-power; and the right to dig a canal of the full width of one and one fourth rods was not narrowed by digging one of loss width, sufficient for the wants of the mill at the time. Within the limits of the grant the plaintiff’s right of occupation was dependent upon the necessary use of the land for canal purposes, and necessity might at any time, as it eventually did, require the whole extent of the grant. The water-power was not restricted in the grant, nor any part of it lost by abandonment or a failure to use the whole supply. So long as the water-power was a part of the mill property, and its entire use required the whole canal right which was appurtenant to the mill, no part of that right could be lost by non-use. A canal of the width of the largest limit named in the grant being found reasonably necessary for the accommodation of the mill and water-power, its extension to that limit was a right lawfully exercised by the defendant. The plaintiff claims that the defendant, in depositing the earth taken from the canal, in its enlargement, upon the banks, is guilty of a wrong for which he is entitled to recover. The grant of the easement gave the right to dig the canal as wide as it has been made. The right to dig the canal was a right to remove the earth somewhere. It was not a grant of a definite tract of land with fixed limits within which a canal might be constructed, but a grant of the right to construct a canal of given width, and this was a grant of the easement in sufficient land for that purpose. The right to dig the canal was a right to throw out the soil, and by necessity it must be thrown beyond the limits fixed for the canal, and that would be upon other land of the grantor of the easement. No restriction being placed upon the mode of constructing the canal, nor limits fixed for the deposit of earth taken from the channel, the grant carried with it whatever was necessary for its reasonable use and enjoyment. Cocheco Manf. Co. v. Whittier, 10 N. H. 305; Bean v. Coleman, 44 N. H. 539; Appleton v. Fullerton, 1 Gray 186; Brown v. Stone, 10 Gray 65. To enjoy the right of digging the canal, there was the reasonable necessity of throwing the excavated soil upon other land of the grantor. Whether it was reasonable for the defendant to leave the earth, thrown from the canal, upon the banks, is a question of fact depending upon the objects and purpose for which the easement was granted, the extent of the grant, the uses to which the plaintiff’s land was devoted at the time of the grant, the usage in constructing and repairing race-ways and canals similarly situated (Prescott v. White, 21 Pick. 341), and all the circumstances of the case. The grant being of an easement, the title to. the soil remained in the grantor, and so much of it as was not necessary to the proper construction of the canal belonged to the plaintiff. Leavitt v. Towle, 8 N. H. 97; *9 Graves v. Amoskeag Co., 44 N. H. 465. The soil belonging to the plaintiff, the defendant, being compelled to remove it in widening the canal, might reasonably leave it for the plaintiff’s use, doing no unnecessary damage. The referee has found that the widening of the canal was necessary for the use of the defendant’s mill and water-power, and has not found that in leaving the earth thrown upon the banks the defendant made an unreasonable use of the right to dig the canal. Having the right to dig the canal and the right to enter upon the land for that purpose, it does not appear that he exceeded what was required for the reasonable enjoyment ■of the easement; and his acts in depositing and leaving the earth upon the banks of the canal are not wrongs for which the plaintiff can recover. Another claim which the plaintiff makes for damages is for the loss of his soil occasioned by the defendant’s removing the lateral support of the adjacent soil by digging the canal and leaving the banks unsupported. The plaintiff has a right to lateral support in the soil of an adjacent owner; and for loss occasioned by removing such support he could recover damages. Thurston v. Hancock, 12 Mass. 220 ; Gilmore v. Driscoll, 122 Mass. 208 ; Farrand v. Marshall, 19 Barb. 380, 385, 386; Hay v. Cohoes Company, 2 N. Y. 162; Richardson v. Vermont Central Railroad, 25 Vt. 471. This is not the case of a tract of land of definite width granted or taken for a purpose wholly to be performed within the boundaries fixed in the grant, or by some act of location. An express grant was made, by right of which the defendant might dig a canal in the land; and if the work was done in a reasonable and proper manner, the plaintiff could have no action for damages that followed as necessary and natural consequences from a proper construction of the canal. All such results were contemplated by the grant. The action of the rain and frost, in causing the earth to some extent to fall into the canal, was a natural consequence of digging it, which the defendant had the right to do; and no fault of construction being found, damages for this claim cannot be recovered. No question is made of the plaintiff’s right to recover the damages awarded for trespasses to his land west of the mill, and for that sum there must be Judgment on the report for the plaintiff. Stanley, J., did not sit: the others concurred.