Powell v. . Lash

Dion, J. The plaintiff admitted “that the defendant, and those with whom he was connected, had had a twenty .years user of so much of the plaintiff’s land as lay between the point where the line approached the pond on the east side of the creek, and a point about one hundred yards below where the line crosses the creek.” This admission is in ae cordance with the facts set forth in the case. As the plaintiff permitted the defendant and those under whom he claimed to have the uninterrupted user, and enjoyment of the land for twenty years, for the purposes of a mill-pond, the' law presumes that a right had been granted, and will mot afford damages for an injury occasioned by such easement. The rights of the defendant and the acquiescence in the injury on the part of the plaintiff, are commensurate with the extent of the user on which the presumed grant is founded. On this subject, the Courts of the common law shave adopted the rule of the civil law — tanturn prcescriptum, quantum possessum: Washburn on Easements, 123; Angell on Water Courses, 452. The modern doctrine of easements by prescription was adopted for the purpose of quieting titles and giving effect to long continued possession. It is founded upon the fact, that there has been an adverse possession and assertion of a right which exposed the party to an action, and the party *459 encroached upon, has neglected to sue for the injury for a period of twenty years. The law presumes that the right asserted could not have been allowed unless there had been a grant: Felton v. Simpson, 11 Ire. 84; Mebane v. Patrick, 1 Jon. 23. Every easement by prescription, is an invasion of the-rights of the owner of the servient tenement, and he is only estopped from claiming damages as to such injuries as be-bas quietly submitted to for twenty years. If any new injury is occasioned by the easement, the owner of the servient tenement, may, at any time within twenty years, sustain an action for this additional invasion of his rights. The damages claimed by the plaintiff in this case are for the injury occasioned by the mill-pond to forty acres of bottom land above the pond.. It appeared in evidence, that before the erection of the new dam by the defendant in 1859, the forty acres of bottom land “ were in a good state of cultivation and yielded fine crops,” and had never sustained any injury from the dams erected by the previous owners that the water in the channel at the point where the line crosses, was three feet below the top of the banks, and the average height of the banks above the current was four or four and a half feet through the whole extent of the bottom lands of the plaintiff. Soon after the new and tight dam of the defendant was erected, the pond began to fill up with sand and mud, so that the water in the channel became level with the banks at the point where the line crosses, and was elevated in the same proportion through said bottom land. This elevation of the water-level has rendered the land unfit for cultivation, and thus caused great injury to the plaintiff. The plaintiff insisted that this injury had existed but a few years, and was caused by the mill-pond of the defendant. This was a question of fact to be decided by the jury, and *460 the instructions asked for by the plaintiff’s- counsel were substantially correct, and ought to have been given. His Honor was in error in charging that “ a twenty years maintenance of the dam, and for that time, using any part of the plaintiff’s land, whether above or below where the line crosses the creek, afforded a presumption of an easement, and rendered the defendant irresponsible for damages, although the jury might believe the filling up of the bed of the stream, and the sobbing of the plaintiff’s bottom land' above where the line crosses the stream, was occasioned by the dam of the defendant.” The rights of the plaintiff were greatly prejudiced by this ruling of his Honor, and there must be a venire de novo. Let this be certified. Per Curiam, Venire de novo.