Wier v. Covell

Hinman, J. The defendant claims a new trial, on the ground that the evidence received by the court in support of the declaration did not support it, but was so variant from the allegations required to be proved by the plaintiff that it should have been rejected. The allegations are that the plaintiff was possessed of a saw-mill near to a stream of water, and had a right to have the water flow in great abundance and plenty unto the said mill, for the purpose of supplying the same with water for the working thereof; but the defendant well knowing, &c., diverted and turned large quantities of water out of said stream, and away from said mill, and hindered, &c. The plaintiff’s title was under a deed from the defendant, which did not give him the exclusive right to all the water of the stream, but reserved to the defendant and his heirs sufficient water to run his cardin g-machine, situated below the saw-mill, and also sufficient water toruna shingle machine for eighteen months; and the claim is that, as the deed gave only a limited and qualified right to the use of the water, it does not support the declaration, which, it is said, counts upon an absolute and unqualified right. If the plaintiff had undertaken to set out his title with precision and accuracy, it might very plausibly be claimed that he was bound to prove it as laid, on the ground that he had made it descriptive of that which was legally essential to his right of recovery; as is the case in trespass to land, where, if a plaintiff unnecessarily de [202] scribes the premises with particularity, he must prove the description as laid, in order to show that the trespass was committed upon the identical land claimed in the declaration. But the case of Twiss v. Baldwin, 9 Conn., 291, decides, as we think in conformity to well established principles, that in cases of this sort there is no more necessity for a plaintiff specifically to set out his title, than there is in trespass to set out the boundaries of his land. He may, in both cases, rely upon a naked possession, sufficient against every body who can not show a better right, under such general description of the property injured or the right disturbed, as will enable him to apply his e^dence to it, without being obnoxious to the objection that it relates to different property or a different right than that claimed in the declaration. The case then is resolved into the mere question whether, in this declaration, the plaintiff’s specific right to the water is attempted to be described ; and we are clearly of opinion that it is not. There is nothing in it which can fairly be considered as descriptive of the right claimed, as was the case in Twiss v. Baldwin. In that case the plaintiff did allege that he had the right to use and enjoy the water in a convenient and customary manner, according to the natural and usual flow of the stream, without hindrance. Yet the court held that this was not descriptive of his right, and that he could recover damages for the disturbance of the lesser right which he was enabled to prove belonged to him. Here the plaintiff had a clear right to have all the water, except such as was required for the carding machine, flow to his mill. His deed gives him that. In the declaration he calls it an abundance and plenty for the supply of his saw-mill. These are terms as indefinite as any that could well be chosen. And inasmuch as the proof went to establish a right in the plaintiff such as he had declared upon, though perhaps not so extensive or general as he claimed, yet as in the case referred to of the same nature, we think the evidence was properly received in support of it. We were referred to the case of Wilbur v. Brown, 3 Denio, 356, as establishing the doctrine contended for by the defendant ; and it is not to be denied that that case does, to some [203] extent, seem to support his positions. It is enough to say of it, however, that if it conflicts with the authority of a late well considered case of our own court, the decision here must control. If there is any such conflict in the cases, it is only in respect to the circumstance that the New York case treats certain allegations as descriptive of the identity of a material or essential part of the plaintiff’s claim, which were not so considered by our own court. But there was much 'ground for considering the allegations in that case as descriptive, which did not exist in the case of Twiss v. Baldwin. The plaintiff in the former case did attempt to describe his • right. He alleged that he was entitled to so much of the water “ as might or could or should rise above the bottom of the sill of said dam.” This the court thought descriptive of his right, and as he had misdescribed it he failed. We think, therefore, that the case may fairly be distinguished from our own, as well as from the case under consideration. But whether distinguishable or not, we are of course bound by the decision of our own court. The defendant makes it a point in the case, that the plaintiff’s mill is not upon or near the stream, the waters of which operate it, because it is upon one end of the pond which is fed by the stream ; and that, as the defendant takes his water to supply his carding machine from the same flume which supplies the plaintiff’s mill, and after it passes the saw-mill in its course to the flume, it is not hindered or diverted from the saw-mill. It can not, we think, be necessary to comment upon these claims, the answer to which appears from the statement of them. If the water is diverted from the saw-mill flume, it is quite evident that the plaintiff is deprived of any beneficial use of it. We do not therefore, on any of the grounds insisted upon, advise a new trial. In this opinion the other judges concurred; except Sanford, J., who did not sit in the case. New trial not advised.