Salley v. Robinson

Strout, J. In the summer or fall of 1877, Mr. Sayward, a former owner of the premises now owned by the plaintiff, built a dam upon land of the defendant, where there were springs of water, and laid under ground an iron pipe through defendant’s land and the public street to his premises. The water from the spring was forced through the pipe by a hydraulic ram located at or near the dam, over which Sayward erected a structure, called the ram house. From that time until the pipe was cut by the defendant, in November, 1900, Sayward and his successors in title, including the plaintiff, received water for domestic use upon the premises now owned by the plaintiff. The plaintiff claimed an easement by prescription to take the water in this manner. This was denied by the defendant, who claimed that the dam, water-pipe and ram were placed there by Sayward by license of defendant, without consideration, to be used by Sayward until the defendant wanted to use the water for something else, and that Sayward never claimed the right to draw water from that spring any longer than defendant saw fit to give it to him. Sayward remained the owner or occupant of the premises supplied with water by this pipe until June 21, 1899. Defendant claimed the rigid to revoke the license. Under this claim, he cut the pipe and stopped the flow of water to plaintiff, and connected the pipe with his own premises, and received there the whole flow from the spring through the plant built and established by Sayward. If we assume that the defendant’s contention is correct, and that he had the right, at his pleasure, to .revoke the license, and stop the flow of water to plaintiff’s premises, what were the legal rights of the parties, in relation to the ram and pipe as affected by the act of the defendant? The license to Sayward to lay his pipe and draw water by the same implied an authority to him, in case the defendant revoked the license, to go upon the premises and remove the ram and pipe. A structure placed upon land of another to be used by the builder during the pleasure of the owner of the land, the ownership of the structure by the builder and his right to [479] remove it wlien the land owner revokes his license, is recognized and implied. The principle is the same if, as in this case, a part of the plant is under ground. Such plant does not become a part of the realty, as a fixture, unless after reasonable notice to remove it, it is suffered to remain; in which case it may be treated as abandoned by the owner. Here the defendant, without notice to the plaintiff or request to remove, cut his pipe. While he had the right, upon defendant’s contention, to stop the flow of water by any means not destructive to the pipe, he had no right to injure or destroy that. But he did more; he not only cut the plaintiff’s pipe, and stopped his water, but he connected the pipe with his own premises, and drew water therefor through the plaintiff’s pipe, by means of plaintiff’s ram, thus appropriating to himself the plaintiff’s plant, to the exclusion of the plaintiff When Sayward put down the pipe, he put a tee in it near defendant’s premises, for the purpose of allowing defendant to take water therefrom if he chose. This he never did, until he cut the pipe. If he had connected with the pipe at the tee, and allowed the water also to go on to plaintiff, the plaintiff' could not complain. But to cut off plaintiff’s supply, and take the whole flow to himself, by the agency of plaintiff’s pipe and ram, was an injury for which the defendant is responsible. It is expressly conceded by the learned counsel for the defense, that if there is any liability of defendant, the damages are not excessive. Motion overruled.