O'Neil v. Blodgett

The opinion of the' court was delivered by Barrett, J. The defendant had given evidence tending to show that the place where he got the water out of the brook was open to the highway so that travellers were in the habit of driving into the brook there to water their horses there, and across the same ad libitum. Being thus open, the going there by the defendant and his father and family, with pails and barrels, to get water, would not involve any element of evidence tending to show that they were doing it in the assertion of a right, as against the plaintiff’s title ; but only that they were using a privilege that was permissive to every body, as much so to the defendant as to the travellers who took the water by their horses, instead of pails and barrels. It certainly was making no larger draft on plaintiff’s generosity to go there with pails and barrels and get water, than to drive with horses and carriages upon the plaintiff’s territory; in both cases appropriating the water of a running stream, in such small quantities as not to diminish the usefulness of the stream for any purpose of the plaintiff. Indeed, that evidence of the defendant tended to show that such getting of the water by him was without claim of right, and was in the use of permission granted by the plaintiff. The doctrine of the law as announced and applied in Plimpton v. Converse, is educed from such tendency of such evidence, and is formulated into the proposition that such use of what is thus open and used, is presumed to be so used permissively and not adversely. Hence the plaintiff’s request was in strict accordance with the law ; and in the posture of the case upon the evidence, we think it was his right to have that request complied with. That evidence having been put in by the defendant, presumably it was so in, for the purpose of having it help to maintain his right [218] by user. With nothing said to the jury as to its character, and relation touching that right, it would be likely to be regarded by them as favoring the claim made by the defendant, of a legal right to get the water. The jury should have been told that it had no tendency to show such right. The propositions of law put to the jury were correct. The closing sentence of the charge was correct, and was proper to be put to the jury. But the telling of the jury, that in order to find that the defendant had acquired the right, by adverse use or prescription, they must find not only that such use was open, &c., but also that it was of such a character, under the circumstances, as fairly to give the plaintiff to understand that it was adverse to his title, or under a claim of right or ownership, “ had no tendency to enlighten the jury as to what constituted such character of the use or to give them to understand that such an open and public use of the brook gave rise to a presumption against the defendant that he must overcome by evidence, and show his actual adverse claim and use, as against such presumption. In fact, the charge, instead of complying with the request, was a substantial denial of it; and gave occasion for an impression upon the jury contrary to what the impression would have been if the request had been complied with. The question of defendant’s right by adverse use having been put to the jury for special finding, and having been passed upon by their verdict, the question became material, and if the verdict is allowed to stand it would be conclusive of the right between plaintiff and defendant, though it may not have been material upon the other issue, viz., whether plaintiff made the first assault. The judgment is reversed and cause remanded.