Barber v. . Nye

Lott, Ch. C. It is claimed on behalf of the plaintiff that the referee has not found facts sufficient to establish a prescrip *213 tive right in the defendant to flow the plaintiff’s land, and the counsel of the defendant disclaims such right. It is therefore unnecessary to examine that question. The defence of the defendant is based on a grant by Samuel Dill, the common source of the title of both parties, contained in a deed from him to Elijah Hiller and John H. Beach, bearing date the 12th day of September, 1814, conveying ten acres of land lying on Owasco creek, westerly of and below the premises of the plaintiff, and the deed also granted as follows, viz.: “Also the privilege, should it be necessary for the purpose of driving machinery by the water of said Owasco creek, to build and construct a dam on the land of said Samuel Dill, at any place within forty rods of the great falls on said creek, and to take the water in race-ways on the said Dill’s land, so as the said grantees, their assigns and associates, should be enabled to take the best possible use of the water.” The defendant became vested with all the rights of Hiller and Beach, acquired and derived by and under that deed, prior to the year 1864, and the findings of the referee show the following facts: First. That in the year 1816, the said grantees, or their assigns, erected a building for a cotton factory upon the land so conveyed to them, and also a dam across said creek on the land of said Dill, within forty rods of the great falls thereon, and thirty rods, or thereabouts, above said factory, for the purpose of supplying water to the said factory ; and that the factory was used and supplied with water by the said dam and the race-ways therefrom, since the time of its erection until the construction of a new dam in the fall of 1864, as hereinafter stated. Second. That the plaintiff, in the year 1845, acquired the title (subject to the rights of the grantees of the land so granted to Hiller and Beach) to his lands through sundry mesne conveyances from Dill, and that he has erected mills and machinery thereon to be operated by the water power of the said creek, but those lands do not include that on which the said dam was erected. Third. That in the fall of 1864, a new dam with a waste- *214 way was constructed by the defendant across the said creek upon his own premises to supply said factory, about thirty rods below the dam erected in 1816, which had then become dilapidated and settled, and it was subsequently, in the spring of 1865, removed. It is further found specifically as follows : “ That the dam of 1816 set back, to some extent, the water of the creek upon the said premises of the plaintiff; that after it became dilapidated it' did not do this to the same extent as when it was new and tight; that the present dam is no higher than the dam of 1816, as originally built, and with the waste-way aforesaid has equal or greater capacity to discharge the water of the creek ; that although the water of the creek sets back upon the premises of the plaintiff to a higher point with the present dam than with.the old one, as it was for several years before the-new dam was built, this result is owing to the settled and dilapidated condition of the dam of 1816 during the time last aforesaid.” The referee, on his construction of the grant in question and the facts so found, came to the conclusion, as a matter of law, that the plaintiff was not entitled to recover, and rendered judgment for the defendant, which was reversed at the General Term. Such reversal was made, as stated in the opinion then given by Mullin', P. J. (after a suggestion by him that the grant gave the defendant no right to flow lands by a dam erected on his own land), upon the ground “ that to authorize a judgment in favor of defendant a prescriptive right to flow plaintiff’s land must be established.” He, in a subsequent opinion given on a motion for reargument, stated that the court had also decided that the dam erected under the deed from Dill fixed the rights of the parties, and that no higher dam could be erected; that the defendant, under the grant, could not build another dam at a different place on Dill’s land, but .that it must remain on the site originally selected, and, therefore, when he built a new dam on his own land and abandoned the old, his right under the old grant terminated. The last of those propositions presents the mate *215 rial question for our decision on the present appeal, and we, after a careful consideration of it, are constrained to give a different construction as to the nature and effect of the grant. It appears to have been understood by the parties thereto that the land conveyed by the deed containing it was purchased and intended to be used for a purpose or in a manner that would require the use of the water on Owasco creek for “ driving machinery ” in the buildings that might be erected thereon, and that the grantees, their assigns and associates, should have the right “to take the best possible use of the water.” It is also evident, from the terms and language of the privilege, that the parties also contemplated, or believed, that it might become necessary, for the purpose of enabling them to obtain and fully secure such use, that a portion of the land of Dill, not conveyed to Hiller and Beach, should be appropriated to the attainment of that object, so far as to erect a dam thereon, and to take the water in race-ways over it to the land so conveyed and the buildings placed thereon, and there is nothing in the grant of such right to exclude or prevent the said grantees or those claiming under them from erecting a dam on their own land in case such necessity to use Dill’s land did not arise. On the contrary, the fair and reasonable inference is that they should not only be permitted, but be reqwvred to adopt all proper and practicable means for the purpose of enabling them to obtain such use before they could exercise the privilege of erecting a dam on the adjoining land of Dill. Assuming this construction of the nature and effect of the grant to be correct, there is no reason why the dam which was built in the exercise of such privilege should be continued after the original necessity for its erection ceased, and its continuance became unnecessary by another dam erected on the land conveyed by the said deed, which secured the same beneficial use of the water, without an increase of its flow on the plaintiff’s land or the imposition of any additional burden thereon, or subjecting it to a greater or different servitude than was created by the old dam. Its abandonment by the defendant did not divest him *216 of the right to use the land included in the said deed as fully and beneficially as it could have been before the said dam was erected. The right to use the water is entirely distinct from and independent of that to use Dill’s land for the erection of a dam, as authorized by the grant, which is only a means more effectually to make the water available. That erection and the subsequent use of the water thereby acquired may have fixed and limited the extent of the right of flowage on the plaintiff’s land, but did not nullify or destroy the right itself. Whether a new dam could have been substituted for the original dam at a different place, on Dill’s land, from that originally selected and appropriated for the erection thereof, or whether another dam could now be erected there, are questions not presented by the facts found by the referee, and on which the expression, of an opinion is unnecessary and would be improper on the present appeal. It is sufficient now to decide that the defendant was authorized to erect the new dam on his own land, and as the referee has found as a fact that it is no higher than the old dam, and that it does not set the water back upon the premises of the plaintiff to-a higher point than was done by the old one as originally built, and before it settled and became dilapidated, as above stated, he rightly decided that the plaintiff was not entitled to maintain this action. It consequently follows that the General Term, in reversing the judgment entered, in accordance with such decision, in favor of the defendant, and granting a new trial, was erroneous. That order must, therefore, be reversed, and the original judgment must he affirmed with costs.