Davis v. Fuller

The opinion of the court was delivered by Collamer, J. — There is much diversity, in the authorities, in relation to apparent alterations in written instruments. By some it is considered such alterations are to be presumed to have been made by the holder after delivery, and that unless he rebuts this presumption, and shows it was made before delivery, or by mutual consent, it destroys the paper. This [189] seems to presume the holder is guilty of forgery and has destroyed his own security. Other law writers consider that such alterations are to be presumed made before delivery or' by consent, until the contrary is shown. But, in this case, we think the question does not arise, as we find, on inspection, that there was no such obvious alteration that the court could, consistently with any course of decisions, have excluded the deed from the jury. The very fact of there being any alteration was quite too doubtful to be assumed by the court. The plaintiff alleged that the injury done him was on lot No. 133. This number was not a matter in issue, that is,‘the plaintiff did not claim to own No. 133 ; neither does it seem to have been important as a matter of identity, as there was no doubt where the plaintiff’s mill in fact was. It was a part, and entirely a useless part, of the description of the locus in quo, for the plaintiff’s land was otherwise described in his deed with sufficient precision. But, as it was matter of description, it must be proved. Reputation was, however, sufficient. That the lot had been so called and treated was enough. Therefore, Woodward’s testimony, that he bought, held and sold it by that name, was clearly admissible. f Among the few exceptions to the rule of law,that the statements of persons, out of court, who might be witnesses in, are not permitted to be proved, is this — the statements of tenants or occupants of land, of the extent or nature of their tenancy. But it is not true that any statement which a man may have made, which was against his interest, is admissible in evidence, because he cannot be presumed to have done it falsely. The entries in physicians’ and stewards’ books, made against their interest, have never been permitted to be proved while they, the physicians or stewards, were still living. Here the defendants offered to show that persons,who owned mills on this dam, had said they had been troubled with back water in the winter, and that it was owing to anchor ice on the falls below. No proof was offered that these persons were deceased. This did not fall within either of the above exceptions and was inadmissible. Besides, it was a mere matter of opinion, on the point on trial, and they could hardly have been permitted to testify to it in court, much less could their opinions on this point be put in evidence, without the sanctions of legal obligation. [190] The case does not contain any sufficient statement to present to this court the question, debated by the counsel, as to the attempt to impeach Hazelton. The case shows it was offered to be proved he had said his saw mill had been obstructed by ice below, but the case does not show that when his mill was obstructed the plaintiff's must be also. This brings us to the main question in the case, that is, what are the respective rights of these parties. The jury, under the charge of the court, have found the following facts. The plaintiff holds a certain lot of land, across which flows a river on which he has a grist mill. The defendants own land on the stream, below, where they have erected a dam to carry a saw mill, but have erected it no higher than is necessary for that purpose. This dam occasions accumulations of ice, which, at times, flows the water back on to the plaintiff’s land, and obstructs his mill, to his injury. There has been no grant between the parties and no user for any such lapse of time as that any grant could be thereby presumed. What are the rights of these riparian proprietors ? It has been supposed, and at times said, in our courts, that, by the first appropriation of the stream to the carrying of a mill, some exclusive right was obtained, and that the rights of proprietors of land to the natural flow of the water across their land must be qualified, or accommodated, or, in some degree, give way to the convenient and prudent use of that water by mill owners above and below. The use of water in ordinary streams,running over lands which are upon the private property of individuals, has been attempted to be placed on the same principle as using the water of the sea, or of navigable rivers, or the use of the air; a mere right derived from the appropriation from the common stock of the element. This, however, is a wrong view of the subject. The owner of land has rights to the use of a private stream, running over his land, peculiar to himself as owner of the land, not derived from occupancy or appropriation, and not comrAon to the whole community. It is the right to the natural flow of the stream. Of this right he cannot be deprived by the mere use or appropriation by another, but only by grant or by the use or occupancy of another for such a length of time as that therefrom a grant may be presumed. This subject has recently undergone much judicial examination. In the laborious re [191] search of the learned Judge Cowen, lately giv$n to the profession in his notes to Phillips’ Evidence, 2 Voí. 378, on this subject, he says: — “ It is not to be disguised that the doctrine “ of exclusive right, founded on mere priority of appropria- “ tion, received, at one time, strong countenance from dicta “of learned judges, if not by direct adjudication;” — “and “ in the anxiety to maintain the concurrent erection and use “ of mills, the claim to the natural flow seemed to rest on very “uncertain ground:” and he cites 15 Johns. 215: 17 do. 306. 3 Caines’ R. 307. 2 Aik. R. 184. The same authorities on which the defendants rely. In England, in the recent case Wright v. Hammond, before the Vice Chancellor, in 1831; and in the case Masonv. Hill, before the King’s Bench, in 1832, the subject underwent judicial investigation. (3 Barn, and Aid. 304. 23 Com. Law R. 77.) Says Lord Tenterden, adopting the language of the Master of the Rolls, “ without the consent of the proprietors who may be affected by his operations, no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor, who claims either to throw the water back above or to diminish the quantity which is to descend below,must prove an actual grant or licence from the proprietors affected,or an uninterrupted enjoyment of twenty years.” “An action will lie at any time, within twenty years, when injury happens to arise in consequence of a new purpose of the party to avail himself of his common right.” In New York, in the case (10 Wendell, 260.) the same doctrine is settled. In Massachusetts the same doctrine is now fully settled. 9 Pick. R. 59. In Connecticut this is also fully sustained in the case King et al, v. Tiffany, 9 Conn. R. 162. And, in these authorities, the courts repudiate- the notion that the amount of the damage alters the principle. In this State, the case of Johns v. Stevens Sf Brewster, 3 Vt. R. 308,-recognizes the same law. The result of all these authorities, then, is, that every owner of land, over which a stream flows, has the right to the natural flow of that stream ; that he can never be deprived of this right but by grant, actual or presumptive. Whenever this right is encroached upon by obstructions or perversions, above or below, and actual injury ensues, to any material [192] amount, an action accrues, however valuable or convenient the use of such obstructions maybe to him who erected them. Judge Story says, in the case Tyler v. Wilkinson, “ mere priority of appropriation of running water,confers no exclusive use.” And again, “ the true test of the principle and extent of the use, is, whether it is to the injury of the other proprietors or not.” The notion now insisted on for the defendants, that a man who has a mill privilege may' use it, if he does no wanton or unnecessary injury to another, is entirely without foundation. No man can be said to have a mill privilege which cannot be used without injury to others. The plaintiff acquired no right by the first erection of his mill, but he had a right to the natural flow of the stream. The defendants, by their dam, interrupted that right. The plaintiff was thereby injured, and for this could sustain his action. Judgment affirmed.