Duncan v. Bancroft

Ames, J. It appears from the bill of exceptions and the accompanying plan that the brook, about which this controversy haa arisen, enters the defendant’s land on the north side, and flows in a southerly direction to a point indicated on the plan as the “ stake and board,” where it divides into two streams. One of the two flows in a southerly direction through the defendant’s land, without entering upon the plaintiff’s premises at all. The other stream flows first in an easterly direction, and crosses the boundary line between the two parties at a point called the upper culvert, and then flows on in a southerly direction through the plaintiff’s land, returning, lower down its course, into the defendant’s land. It appears also that in several actions at law against this defendant (the first one of which was decided upon the award of arbitrators) the plaintiff has, by the judgment of the Superior Court, established his right to use, for the purposes of irrigation, a part of the water so flowing over his land. The award of the arbitrators was that “ the natural course of the stream of water ” (named in the plaintiff’s declaration in the first of the actions) “ is from the land of the defendant, through the culvert in the line wall, called the upper culvert, into the land of the plaintiff,” around the knoll, and “ thence again into land of the defendant ; ” that “ for a period of more than forty years, the plaintiff and those under whom he claims have exercised the right to use a part of said water, for purposes of irrigation, by diverting it from said natural channel at a point on said land of the plaintiff; that he has a right to use such water for said purpose,” and “ that the defendant did divert said water from its said natural channel, so as to prevent its flowing through said upper culvert into and upon the land of the plaintiff, and thereby deprived the plaintiff of his right to use said water for the purpose of irrigation as aforesaid.” The effect of this judgment was that it is to be considered as settled, for all future litigation between these parties, that the stream of water entering the plaintiff’s land at the upper culvert was a natural stream, which he had a right to use in the manner described in the award, and which the defend* [272] ant had no right so to obstruct or divert as to impair or interfere with that use. But we do not think it a necessary deduction from the award, and the various judgments in the plaintiff’s favor, that the defendant had not also a right to the enjoyment of so much of the brook as flowed through his own land, without crossing the boundary line between the two estates. The award by no means implies that the natural course of all the waters of the brook was through the upper culvert into the plaintiff’s land. The stream described in the award was the one which ran through the de fendant’s land into the plaintiff’s, and according to the award the plaintiff is entitled to have that stream still run there, without interruption from the defendant. But it does not follow, because the defendant has no right to interrupt that stream, that he has not the right to the enjoyment of the other part of the stream, that naturally flows, or has from time immemorial flowed, through his own land, without entering the land of the plaintiff. If it appeared that, without any artificial obstruction to the flow of the water to and through the upper culvert, that flow had ceased, but that the flow on the defendant’s land had continued ; and if it also appeared that such had been the state of things during the time mentioned in the former suits and covered by the former judgments, these facts would be competent evidence tending to show the continuance of the same diversion of the water by the defendant which was determined by the judgment in those suits to be a wrongful act on his part. But we do not think it would be necessarily conclusive against him. If he should show that, without fault on his part, the channel leading to the upper culvert and so into the plaintiff’s land had become obstructed, it would be a fact which he might use in his defence. For that purpose, it was allowable for him to show the character of the soil through which the channel passed, and that it was such as to require attention and labor to keep it open. We do not think that he should have been restricted, upon this point, to evidence of neglect on the part of the plaintiff. Although the defendant could not lawfully contradict the award, or impeach the former judgments, and although it must [273] be considered as conclusively settled that the stream across the plaintiff’s land was a natural watercourse, yet the defendant should have been permitted to show, if he could, that the stream across his own land was also an ancient watercourse; that during the time mentioned in the writ it was flowing as it had done from time immemorial, and that he had not, by any act of his own, enlarged the supply of his own brook by diminishing that of the plaintiff’s brook. The evidence offered by the defendant, to prove that the channel from the “ stake and board ” to the upper culvert was originally dug by the plaintiff, was in contradiction of the award, and was rightfully rejected. But although the judgments were conclusive to show that the defendant was in the wrong at the periods of time covered by them, they do not show that he was bound to turn the entire brook into the plaintiff’s channel, or that the subsequent failure of that channel to convey the water was necessarily owing to any misfeasance or nonfeasance on his part. That would still be a question of fact to be passed upon by the jury. Exceptions sustained.