Butz v. Ihrie

The opinion of the court was delivered by Tod, J. It is the. unanimous opinion of the court to affirm the judgment. The question chiefly argued by the counsel has been, whether the case is affected by the act of limitations, or by analogy to it? ' The plaintiff alleges an injury by a dam erected by the defendant in a stream, called the Bushkiln, throwing the water upon his, the plaintiff’s land, and injuring his grist-mill. The defendant insisted that when the suit was brought, no water at all had been raised upon the plaintiff’s property by rneáns of the dam; he admits that, after the suit was brought, the water had been thrown by .the dam upon the plaintiff’s land, but not so as to hurt the plaintiff 's mill, and that the dam was lawfully erected by virtue of a reservation in a deed, dated 12th of April, 1793, from Jacob Koechline and Peter Ihrie, to James Ralston and John MulhalIon, in these words: “excepting and reserving therefrom, to the said Jacob Koechline and Peter Ihrie, their heirs or assigns, tenants and occupiers, possessing and holding a certain lot or piece of ground, situate on Btishkiln creek aforesaid, below and adjoining the hereby granted premises, commonly known by the name of “the fulling-mill tract;” the full, free, and absolute right and privilege to raise, swell, and dam the water in the said creek, from a dam intended to be built on the said fulling-mill tract, upon the premises hereby granted-; provided the same is not raised or swelled so high as to injure and damage the grist-mill hereby conveyed.” The grist-mill mentioned in the reservation is the plaintiff’s mill in question. The reservation is admitted to be valid, unless affected by lapse of time. But the deed being dated in 1793, and the dam complained of not being erected until 1825, and there thus being a space of thirty-two years between the reservation of the right, and the building of the dam in alleged pursuance of that right, the argument by the.plaintiff’s counsel is, that the privilege reserved having been abandoned or. neglected for twenty-one years [222] and more, is thereby lost; and that a release, or some other extinguishment, ought to be presumed, from mere length of time, by the act of limitations, or. the legal analogy to it. They argue, that here are eleven years over and above the time necessary either to create and confirm by possession an incorporeal right, or to forfeit and extinguish any privilege, such as that claimed by the defendant in this case, by non-user and laches. We are all of opinion, that the lapse of time has not beén such as to create any bar or forfeiture, and that under the circumstances of this case the privilege reserved in the.deed of 1793, was.in full force in 1825, unaffected by any prescription. The omission to erect the dam can scarcely in this case be called a non-user. Certainly it cannot be called laches. It would have been otherwise, had the deed shown that an immediate exercise of the privilege reserved was contemplated by the parties. Here the right of building the dam appears to be expressly reserved, even -to the heirs and assigns of the grantors in the deed. We concur in the opinion of the Chief Justice expressed to the jury, that the law. of- limitations may be applicable to a case of this kind; but that the time cannot begin to run against such a privilege by reservation, until some default, negligence, or acquiescence is shown, or. may be fairly presumed .in the .owner. The time of limitation may begin to run as soon as the laches exists, but not before—no more than on a bond or promise to save harmless, will the limitation begin to run, before the damage happens: it not being the date of the contract or grant that, is material in these cases, but the time of performance. , ' The plaintiff’s counsel-have presented one very important question, which, I apprehend; cannot be directly decided, because it does not appear to have been presented to the court below, nor mentioned'. It is, whether the dam in question, not being an ordinary mill-dam, but erected for the mere purpose of dividing the water between the mills on the different sides of the island, thus causing a perpetual swell of water on the plaintiff’s land, can be authorized by the reservation in the deed of 1793? It seems to be a question which depends on sundry matters, such as the nature of the stream, usage, necessity. If, in point of fact, the dividing dam is necessary .to the full, just, and proper, enjoyment of the water power, then, in my opinion, the erection of such dam is justifiable under the reservation. We all agree with the plaintiff’s counsel most entirely, that, according to the just intent and meaning of the proviso in the reservation, an injury to the plaintiff’s mill-race is an injury to his mill. There can be no doubt upon the matter. . Any impediment in the stream caused by the defendant’s dam, by which the plaintiff’s mill is stopped from grinding in any state of the water, or made to grind slower, or worse than it otherwise would, is an injury for which the plaintiff would be entitled to damages in this case, notwithstanding [223] the reservation is j-et in full force. If the damage' was to the land only, and not to the mill, the plaintiff was not entitled to recover. And, in substance, the Chief Justice so charged the jury. The mere number of dams we do not think to be material: though the words of the deed are “a dam,” &c., yet the substance of the reservation is of a privilege to overflow the land, not injuring the mill. Whether this is done by one dam, or-more than oné, erected on the defendant’s land, appears unessential. This applies not to the dividing dam. "Whether that is illegal or not, seems to depend .on other matters already, mentioned. Judgment affirmed.