Evidence — Flowage — Title by prescription. 1. The plaintiff called Dolloff as a witness to show that the defendants did not claim to flow to the height of the present dam. He testified to statements claimed to have been made by Marshall, one of the defendants, tending to establish that fact.
Marshall was then called by the defendants to contradict Dolloff; and for that purpose it was clearly competent to ask him what he did state to Dolloff that respect, and whether he stated to Dolloff that he claimed to flow to the height of the present dam. His answer to the question excepted to, in the presence of the jury, if not admissible, was immaterial. The defence set up was, that they had a right to flow to the height to which they did flow.
The statement of Marshall, then, that they claimed the right to flow to that height, was only a statement of their defence, which their counsel must have also asserted to the jury in conducting the defence, and in itself proved nothing, and could not have misled the jury. 2.
I see no error in the instructions, that while as against the public the defendants could not gain a right by prescription to maintain their dam by reason of its being located within the limits of the highway,* yet as against the land-owners they might acquire such prescription right provided it did not interfere with the public use of the highway.
This seems to have been settled in Borden v. Vincent, 24 Pick. 301, where it appeared that a town made a road across a navigable stream, and a mill-owner erected his mill and applied the road as a dam for the same, whereby land of a third party was flowed, and this had been continued for more than twenty years. It was held that the mill-owner had acquired a prescriptive right to flow the land, although he might hare been liable to indictment by so doing in a public prosecution for a nuisance to the highway.
See, also, Washb. on Easements, ch. 1, sec. 4, par. 46. The doctrine established in that case is clearly correct. The public have only a right of way over land taken for a highway. The fee in the land remains in the owner, and he can use and occupy the land in any way that does not interfere with the light of the public to pass over it.
In case of the way being discontinued, the land reverts to the original owner or his representatives, divested of the public easement, and as between him and third persons there does not seem to be any reason why he cannot acquire any rights upon his own land which he could otherwise acquire, if the public had not the right of passage over it, not inconsistent with such right of the public.
But the plaintiff contends that as the defendants showed no title to the land on which the dam was situated, they could not, consequently, acquire the right to flow by prescription. As I understand the case, no other title was shown in the defendants on the trial than that gained *Page 447 by adverse possession, or from having been in possession and having maintained the dam for more than twenty years.
If the defendants, or those under whom they claim, were in possession as tenants for life, for years, or at will, they could not prescribe in themselves by reason of the imbecility of their estates. A prescription in a que estate must always be laid in the person who is seized in a fee simple. 2 Blk. Com. 265.
But it appears form the case, as drawn, that these defendants and those under whom they claim have acquired by adverse possession for more than twenty years before the commencement of this suit, a title, not only to the dam, but to the land upon which it is situated.
They have been in possession, not as tenants under others who claimed to own the fee, nor under license, but their possession has been continued, uninterrupted, and adverse, that is, under a claim of right, with the acquiescence and knowledge of the owner.
The position is taken that the defendants could not acquire a right to flow the plaintiff's land by prescription until they had first gained a title to the land upon which the dam is located, either by grant or by adverse possession; or, in other words, that they could not acquire a right to flow and a right to maintain their dam on the land of a third person at the same time. But no authority is cited in support of this position.
The erection of a dam upon the land of another, and maintaining it there for a period of twenty years with the acquiescence and knowledge of the owner of the land, and the continued, uninterrupted possession of the land under a claim of right for twenty years, and during all the same period flowing the land of a third person above on the stream with his knowledge and acquiescence, must unquestionably gain for such person a title by adverse possession to the land upon which the dam is located, and a right by prescription to flow the land of such third person situated above on the stream. * State v. Franklin Falls Co., 49 N.H. 256.
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