Peck v. Clark

Holmes, J. 1. If there was no spring, properly so called, on the Darby lot, it may be doubted whether the reservation of “ the spring of water on said premises ” in the conveyance of that lot would not be taken to refer to the stream, without evidence in favor of such an interpretation. The stream was the [440] outlet of a spring a short distance off on the next lot. It hardly appeared as a stream to casual observation, and it was finally lost in the ground. Nothing would have been more natural than to describe it as a spring, and it cannot be contended seriously that such a slight inaccuracy of expression is to make inoperative words clearly intended to reserve something, assumed to be well known to, or easily recognized by, the parties, as is shown by the use of the definite article,— “ the spring.” The plaintiff’s evidence tended to show that there was no other spring, and evidence that this water was called a spring in the neighborhood was admissible, although possibly superfluous. 2. The evidence that Peck, the plaintiff’s grantor, now deceased, when he made his conveyance to the plaintiff, stated on the Darby lot that he intended to carry this stream off the Darby lot, and called it a spring, was admitted, we presume, as being in effect an identification of the spring attached to the land conveyed, and as falling within the principle of declarations as to boundaries. Daggett v. Shaw, 5 Met. 223. Davis v. Sherman, 7 Gray, 291. Wood v. Foster, 8 Allen, 24. Long v. Colton, 116 Mass. 414. Hunnicutt v. Peyton, 102 U. S. 333, 364. So far as these cases stand on the ground that such declarations are acts qualifying the party’s possession, Niles v. Patch, 13 Gray, 254, 257, they do not apply to the identification of an easement. For, unless it be assumed that the easement identified and claimed is the one in fact attached to the. dominant estate, the party making the declaration has no possession of it; and the assumption thus made to justify the admission of the evidence would be an assumption of the very fact which the evidence was admitted to prove. But it is more satisfactory perhaps to say, that the admission of such declarations has generally been regarded as an exception to the general rule against hearsay, and that we cannot extend the principle further than it has been carried by authority. We are not aware that it has ever been applied to a case like this. On this point, the exceptions must be sustained. 3. The testimony of Mrs. Darby, the original grantee subject to the reservation of the spring, that, at the time of her purchase and ownership, there was no other water or spring on the lot, was admissible, of course, as tending to show that the words [441] must have referred to this water. Her subsequent statement, that she understood at the time that this stream was the water reserved, seems to have been merely a statement of a conclusion from what she had already testified, and did not add to it. Whether standing alone it would have been admissible, if the suit had been against her, as an interpretation made by her against her own interest, and whether, if admissible against her, it would have been admissible against a purchaser from her without notice, are questions not fairly raised, we think, in this case. 4. The instruction to the jury was correct. It may be true that, so long as the plaintiff had not appropriated the water, he could not have sued the defendant for doing transitory acts, such as drawing water in pails or watering his cattle. But when the defendant put in an aqueduct, which diverted the water continuously, and which would interfere with the exercise of the plaintiff’s rights whenever thereafter he sought to exercise them, he did an overt act of permanent effect, which amounted to a standing open denial of the plaintiff’s right, and which would have extinguished it in twenty years to the extent of the water withdrawn. . Nominal damages, at least, may always be recovered for such an act. 5. The ruling of the court required the jury to find that the defendant put in the aqueduct and withdrew the water without the plaintiff’s consent. When the charge was finished, the defendant had no right to single out particular circumstances tending to show consent, and require the court to comment on them specially. Whether the plaintiff’s making no objection to the aqueduct and afterward using water from it, if proved, would have amounted to anything more than evidence from which the jury might have inferred consent, we need not consider. The counsel for the defendant argues that the question should have been submitted to the jury, but his request was for a ruling that the supposed facts were a bar, as matter of law. Exceptions sustained.