Weed v. Keenan

[77] The opinion of the court was delivered by Royce, Ch. J. We find no error in. the charge. The jury were told, in regard to the conversation in evidence between the defendant and Robert Carruth, when defendant asked leave to raise the water or the dam, that if before that time the defendant had acquired the right by prescription to keep his original darn at the height he had kept it, that that prescriptive right would have become so perfected and completed in him by the lapse of the requisite period of fifteen years, that nothing he could' say, no acknowledgment he might make, could take away from him that right which had in such way become vested in him. There can be no doubt as to the correctness of the instruction. A right acquired by prescription is in all respects as perfect as one acquired by grant; it has the same validity and force. Arbuckle v. Ward, 29 Vt. 43; 3 Wash. Real Prop. (5th ed.) p. 59. It is claimed, however, that the instruction of the court had effect to take away from the jury the decision of the question whether what was said on this occasion between the defendant and Carruth had reference to raising the permanent structure of the dam or to the use of the flash-boards. We do not so understand it. It was not made to appear that the permanent structure of the dam was raised above the eight feet, the prescriptive height; and the jury were, told in substance that if the conversation had reference to any .raising of the dam within the limit of the prescriptive height, then it amounted to nothing; for no acknowledgment on the part of the defendant could divest him of that already vested right. “So in that event,” the court said, “whatever passed between Carruth and the defendant would have reference to only the flash-board.” In other words their talk either had reference to the raising of the dam by the use of the flash-boards above the eight feet, the height of the original structure, or it amounted to nothing. Then the jury were further told that if the conversation had reference to the use of the flash-boards, then it was an acknowl [78] edgment of a superior right in Carruth, and that “such an asking of leave, such an acknowledgment, would rebut the presumption of a grant, and interrupt the acquiring of any right to use that flash-board on the part of the defendant.” There can be no doubt of this. Mitchell v. Walker, 2 Aiken, 266; Wilder v. Wheeldon, 56 Vt. 344. Authorities might be multiplied on this point, but there is no need of further citations. Finally, in summing up, the jury were told that it was important for them to determine precisely what transpired between the parties, and whether it amounted to an acknowledgment on the part of the defendant of the superior right of Carruth, remembering that if the defendant had acquired by prescription the right to keep his eight-foot dam, whatever he said could not take away that right, but that if what transpired was during the time that he claimed to have acquired the right to keep his flash-board, which he commenced to put on in 1867, as this conversation was thirteen years ago, he had not acquired the right by prescription as touching the flash-boards. Then the jury were instructed to state in their verdict, if it should be for the plaintiff, whether it was rendered because of the permanent structure overflowing the land, or solely on the ground of the use of the-flash-board. The foreman informed the court that the damages were given in consequence of the use of the flash-board. To have reached this result the jury must have made up their minds that the conversation between the defendant and Carruth had reference to the use of the flash-boards, and then following the instructions of the court that such an acknowledgment of a superior right in Carruth would rebut the presumption of a grant, they found that the defendant had not acquired the prescriptive right he claimed to the use of the flash-boards, and so made up their verdict. The result was logical and should not be disturbed. Judgment affirmed.