Perrin v. Garfield

Peck, J. The defendants are sued for removing a dam and flume at the outlet of a natural pond in Wheelock. The dam and flume was situate on the land of the defendant John Garfield. He and the other defendants were at the time of the trespass complained of owners of land bordering on the pond, and the effect of the dam was to raise the water in the pond about three feet above its natural level and cause it to flow the low lands of the defendants to their injury. The question is whether the plaintiff or those under whom he claims title had acquired an easement which justified him in keeping up the dam for the use of his mill situate' about three-fourths of a mile below the dam, on a stream flowing from this pond. The plaintiff’s title or right to keep up the dam rests on adverse enjoyment of the easement in connection with the use and occupancy of his mill. In order to make out such right it is necessary for the plaintiff to prove an uninterrupted adverse enjoyment of the easement for a pe — 309 — riod of fifteen years by bimself or his predecessors in title, or by both combined. To make ont the requisite period of time, the plaintiff can have no benefit from the user of Cooke, who erected the dam and kept it up from 1822 to 1832, when the mill Cooke erected in 1821 was burned, because the case shows that there was no privity between Foster, who erected the plaintiff’s mill in 1833, and Cooke. But it appears that in 1833 Foster erected the mill now owned by the plaintiff on the same stream, about sixty rods above the site of Cooke’s mill, on another lot in Goshen Gore, and went into the use and occupation of the dam and flume at the outlet in the same manner that Cooke had done, and that he kept up and used his mill for eighteen years, and during all the time kept up and used the dam and flume at the outlet of the pond in connection with it. In 1850 or 1851 Foster sold and conveyed the mill to Smith who occupied it for about two years, when he sold and conveyed it to the plaintiff who has owned and occupied it ever since. This shows an enjoyment of the easement a sufficient length of time, exclusive of the time that Cooke and his successors in title enjoyed it, to acquire a right coextensive with such enjoyment, if the user has the other legal characteristics necessary to gain the right. But it is insisted that the user was not adverse, or under a claim of right, and therefore no right was acquired. The leave granted by the defendant John Garfield to Smith, about the commencement of Smith’s occupancy, is sufficient to destroy the adverse character of Smith’s enjoyment; and the same is true as to the first two years of the plaintiff’s enjoyment, up to the time the plaintiff asserted his right, and notified the defendant, as stated in the case. This interrupted the adverse enjoyment of the easement, and fifteen years did not elapse between the termination of Foster’s user, and the notice by the plaintiff to John Garfield that he claimed the right in question. The question then must turn on the eighteen years enjoyment of the easement by Foster. It is claimed by the defendants’ counsel that that was not adverse or under a claim of right. It is insisted that the leave asked by Smith about 1851, and by the plaintiff about two years after, and granted by John Garfield, destroys the adverse character of Foster’s previous enjoyment of the easement. But if Foster had already acquired the right, this license — 310 — asked and granted lias not the effect in law to defeat it. It is evidence tending to show that the previous user by Foster was not adverse or under a claim of right; but it is evident that the court did not so find the fact. This is evident from the statement in the exceptions, that “ it did not appear that Cooke or his successors, or Foster, ever procured any license or permission from any one to erect or keep up the dam, or that they ever acknowledged any title in any one, nor was there any evidence of what right they claimed to .keep up the dam, except what may be legally inferred from their continued use and occupancy of it for this period of time.” The general rule is that the enjoyment of an easement of this character is presumed to be adverse unless something appears to rebut that presumption. This is the general rule, when there is no express evidence that the user was accompanied by a claim of right, and no express evidence of a disclaimer of the right by the party enjoying the easement. There are some cases where the user is of such a character, and the circumstances attending it are such, as to show that it was a mere privilege enjoyed by leave of the proprietor of the servient tenement, express or implied, and not adverse. These cases are exceptions to the general rule, and peculiar in their character. This case comes within the rule and not within the exception. The fact that Foster incurred the expense of erecting the mill which, as the case shows, was almost worthless without this easement, tends strongly to show that he either had, or claimed the right, to the easement, or intended to enjoy it in defiance of the owner of the servient tenement. The court were warranted by the evidence in finding that the user of Foster was adverse, and it must be intended that they did so find, as this fact is necessary to warrant the judgment they rendered. It is insisted that the case shows no notice to the owners of the servient tenement or lands, and that without proof of such notice no such acquiescence on the part of such owners is shown, as is necessary to the acquirement of an easement. The cases are rare and peculiar where proof of notice has been held necessary. The general current of the authorities is the other way. Whether they proceed upon the ground that notice is unnecessary, or on the ground £hat notice is to be presumed, it is not necessary in this case to de — 311 — cide, because in this case, not only is there nothing to rebut the presumption of notice, but the circumstances are strong to show actual notice. The erection of a structure so obvious and palpable as a dam and flume, and the use of it such length of time by means of a gate at the outlet, to supply the mill, could hardly be otherwise than notorious in the vicinity, and would not be likely long to escape the observation of the proprietor of the lands on which they were situate and which were thereby injuriously affected. It is true the lands about that pond were wild and uncultivated till 1850, but this is not sufficient to rebut the presumption of notice. It is urged that Dartmouth College, the original grantees of the town of Wheelock, would not be likely to know of the erection of the dam, but it does not appear that the College owned the land at the time the dam was erected or while Foster or his successors were using it. The case shows that the defendants purchased their lands of Loomis about 1850, and that the title came originally from Dartmouth College ; but the case further states that it did not appear when the College parted with the title. For aught that appears, Loomis or some prior purchaser in the chain of title from the College, owned the lands during the whole period of the user, and lived in the immediate vicinity. Under these circumstances the court were warranted in finding the fact of notice, and it must be taken that the court did so find, if notice is material. We have therefore no occasion to decide what the effect would be if it appeared that the proprietor of the servient tenement lived at a great distance and had no knowledge of the erection of the dam. We are not prepared to say that such proof would have defeated the plaintiff’s right to the easement. It is sufficient to say that we have no occasion to decide the question. It is claimed by the defendants that as the rule of law giving a party a right to an easement by fifteen years’ adverse enjoyment, is adopted from analogy to the statute of limitations under which title to real estate is acquired by fifteen years adverse possession, the exceptions in the statute applicable to the latter apply equally to the former. This question it is unnecessary to decide, because a party who relies on an exception in the statute of limitations must show such facts as bring' the case within the exception relied on. It appears by the charter of the town to Dartmouth College, that the land — 312 — was granted to a public charitable use, and such lands are excepted from the operation of the statute ; but the College had the power of sale, and as already stated, the case shows that it did not appear at what time the College parted with the title. This exception in the statute did not apply to the land after the College sold and conveyed it. To entitle the defendants to the benefit of this exception it was incumbent on them to show that the College still owned the land at least during some portion of the fifteen years during which Foster was in the enjoyment of the easement, and by which user it is claimed by the plaintiff that he, Foster, acquired the right. It is claimed also on the part of the defence that the easement is of such a character and so distant from the mill that it would not pass by a conveyance of the mill, and that therefore whatever right to the easement Foster had acquired, it did not pass by his deed of the mill to Smith, and by Smith’s deed to the plaintiff. The case shows that the principal supply of water to run the mill was by means of this dam, and that by the privation of it the mill is rendered almost valueless. The general rule of law is, that whenever a party grants a thing he by implication grants whatever is incident to it and necessary to its beneficial enjoyment. The incident goes with the principal thing. This principle is especially applicable to water privileges in grants of mills and factories dependent on a flow of water for motive power. It is said this dam or easement is too far distant to pass by a conveyance of the mill. But the idea and definition of an easement incident to real estate granted, is a privilege off and heyond the local boundaries of the land or tenement conveyed. There is always a dominant and a servient tenement. It is not necessary that they should be contiguous to each other. The proximity of the one to the other is of little comparative importance in determining the question whether the easement passes by a conveyance of the dominant tenement. It depends rather upon the nature, character and purpose of the easement, its relation to the subject matter of the grant, its accustomed use in connection with it, and its necessity to the value, and to the beneficial and convenient use of the premises granted. There is a necessary connection between the mill and the stream and fountain of water which supply it, and which had long been used in connection with it. The — 313 — value of the mill depended mainly upon this privilege, so that without it the mill was almost worthless. The easement or privilege in question was necessary, if not indispensable ,to the use of the mill, was of great value to the grantee, and of no value apparently to the grantor after he had parted with the mill. Under these circumstances it is clear that the easement passed with the mill. Judgment affirmed.