Nitzell v. Paschall

The opinion of the court was delivered by Gibson, C. J. The foundation of the licence mainly relied on at the trial, .was a supposed grant in the patent of 1689. The patent 'was issued to twenty-four grantees “ for the use of a mill;” and hence, as the land granted did not afford a sufficient water power for the purposes of the mill, which it appears was even then erected, it is supposed that this designation of the object in view, amounted by necessary implication to a grant of any additional power that was at the disposal of the proprietary. It might admit of a question, whether a grant by one, who acted in the capacity of a sovereign, could be extended by implication, without proof of knowledge, that such extension would be absolutely necessary to carry the main design into effect. Again, it seems the patent was not issued as evidence of an original grant, but to confirm the grantees in possessions guarrantied to them in the act of cession by which the Swedish colony passed to the British crown. If so, the grantees held by title paramount; and if the lands of the plaintiff were held by the same species of title, as is altogether probable from the circumstance that it lay in the heart of the Swedish settlement, and contiguous to what was called the governor’s palace on Tinicum Island, it could not be affected by any grant or reservation of the proprietary, as either would be in derogation of the treaty. The inclination of my mind, however, happened to be in favour of supporting the implication of a grant strengthened, as it seemed to be, by a long, and at one time an uninterrupted possession and use of the right. But evidence having been given of a [82] subsequent non user for at least thirty-eight years, I directed the jury, that in the absence of proof to the contrary, the law raised a presumption, which they were bound to adopt, let their actual belief be what it might, that the right had been released or extinguished in some other lawful mode: and of the solidity of this also, without intending to intimate an opinion either way, I am inclined to doubt It is certainly true that, a right of enjoyment may be lost in the same way it has been gained, and when acquired by an adverse possession; for twenty years, it may, I should suppose, be lost by non user for the same period. Where, however, it has been acquired by grant, it will not be lost by non user in analogy to the statute of limitations, unless there were a denial of the title or other act on the adverse part to quicken the owner in the assertion of his right: and this much was decided in Butz v. Ihrie, (1 Rawle, 218.) I think there cannot be a doubt, but that lapse of time may be so great as to afford a natural presumption without aid borrowed by analogy from the statute of limitations. The question was, however, whether mere non user for any length of time without any disaffirmance of the right on the adverse part, were sufficient to found an artificial presumption, or could operate in any other way than as evidence to be left to the jury for what it might seem to them to be actually worth. Happily, the decision of this question is superceded by a new state of the case produced by the effect of the will to which, at the trial, I did not sufficiently advert. The testator was at the time of his death, the owner in whole or in part of four contiguous tracts of land, which are in part, bounded by the water course in question. Of these, one is now owned by the plaintiff, and another by the defendant. To the latter was devised the testator’s undivided moiety of certain four acres called “ the saw mill land,” “ together with all the rights and privileges thereunto appertaining.” Now independently of the testator’s power to burthen, at pleasure, particular parts of his estate with easements or privileges in favour of devisees of the other parts, it is to be remarked, that this undivided moiety of the four acres had come to him with a privilege appertaining to it, and created either hy an implied grant in the patent, or at least by long adverse possession, of swelling the water back certainly to the mouth of what is called middle run; and this as a privilege appurtenant is expressly devised to the defendant. I am aware that there was another privilege appurtenantof butting a dam on the opposite shore, which might be sufficient to satisfy the words of the devise; but the construction we have adopted seems to be in furtherance of the plain and obvious general intent of the will, in favour of which particular expressions ought to be liberally expounded. The devise of the appurtenances to the saw mill tract, then, is an express devise of a right to swell the water as high as the mouth of Middle Run, which is the lowest and southernmost boundary of the plaintiff’s land. But in addition, the testator devises to the defendant a right to erect a dam at any point between the plaintiff’s land, then devised to the testator’s son [83] Benjamin, and the land on Ihe eastern side, of the creek, devised to his son John; with the further right to diga race through John's land. Is not this substantially a devise of the remaining part of the water power; and does it not, in conjunction with the devise of the privileges appurtenant to the saw mill tract which were never severed from it by the testator, pass all the property in the water course, which was subject to his control 1 Although the words, taken strictly, import nothing more than a right to erect a dam, the subject of the devise is the water power ; the authority to erect a dam on' the land not belonging to the devisee, having regard only to the mode of enjoyment, which could not have been in this way, unless the privilege could not have beep exercised by means of a dam erected on the devisee’s own land. In Butz v. Ihrie, already cited, where there was a reservation in a conveyance of a right to swell the Water by means of “a dam,” it was held that the substance of the reservation was the right to overflow; and whether this were done by one dam or more, was unessential, so that the mode of enjoyment being merely directory, could not abridge the extent of the right. Now it is impossible not to perceive that the leading, intention of the testator here was to attach to the saw mill tract all the power which the water course afforded, and this with the most exlended means of enjoyment, which it was in his power to confer, inasmuch as the power being barely sufficient for a mill at the lowest point of the water course within his boundary, would have been altogether worthless, had it- been distributed among the different parts of his estate. The intention then being clear, and the words being sufficient to pass the right, it results that a licence sufficient for all the purpose of defence was created by the will; against which, having been partly put in use by the erection of what is now Passmore's dam, there can be no presumption from lapse of time, of any release or extinguishment whatever; and I ought to have so instructed the jury. Judgment reversed, and a new trial awarded.