Mason v. Horton

START, J. The plaintiff and defendant own water privileges on opposite sides of a small stream in the town of Clarendon. These privileges were formerly owned and used by William Brown, from whom both parties derive their title. When both privileges were owned and used by William Brown the water was diverted by a dam, and used to supply mills on the defendant’s side of the stream; and the water that was not thus diverted flowed in the channel until it reached land now owned by the plaintiff, and was there diverted by another dam, and used to supply mills on the plaintiff’s side of the stream. William Brown.died in 1830, and his estate was divided among his heirs. The plaintiff’s privilege has not been used since sometime between 1870 and 1876. The defendant’s privilege was not used from 1851 to 1877, when the defendant built mills and diverted the water to supply them the same as William Brown had been accustomed to .do, and discharged the spent water at a point below the point where a dam was formerly maintained at the plaintiff’s privilege. It appeared that during the time the defendant’s privilege was not used' all of the water flowed in the channel past the plaintiff’s privilege ; and she claims that it is her right to have it flow as it did during this time. The plaintiff’s evidence tended to show that when the de [269] fendant’s privilege was formerly used the spent water was discharged above her dam, and that she and her grantors had the benefit of all the water. The defendant’s evidence tended to show that the spent water was discharged below the dam during all the time his privilege was used by William Brown, his heirs and their grantees, down to 1851, and that neither the plaintiff nor her grantors had any use of the water that was diverted to supply mills on his side of the stream. The plaintiff requested the court to direct the jury to return a verdict for her. The court complied with this request, and refused to submit any questions to the jury except the question of damages. In this there was error. The defendant’s evidence tended to show that during the time William Brown owned and occupied both privileges, the spent water from the mills on the defendant’s side of the stream was discharged below the dam which fed the mills on the plaintiff’s side of the stream. If the water was thus discharged during William Brown’s ownership of both privileges, when the estate was severed and the different privileges passed to the respective heirs in severalty, the right to thus discharge the water continued, as a matter of legal right, in the respective heirs and their grantees, as an implied grant, the same as though such right had been set forth in the instrument by which the estate was severed, and the privileges set to the respective heirs. Harwood v. Benton, 32 Vt. 724; Goodall v. Godfrey, 53 Vt. 219. The defendant having succeeded to the title of the heirs to whom his privilege was set out, he has a right to discharge water at the same points where it was discharged during the time William Brown owned and used both privileges, unless that right is lost by reason of an adverse use by the plaintiff or his grantors, or by non-use by the defendant and his grantors, for fifteen years. We think the court could not hold, as a matter of law, that .the use of the water [270] by the plaintiff and her grantors was adverse, or that they had exercised any adverse rights. When the mills on the defendant’s side of the stream went to decay, the defendant and his grantors had no use for the water until new mills were erected in 1877; and for this reason, from 1851 to 1877, they did not draw water from the stream. Consequently, all the water flowed through the channel into the pond on the plaintiff’s side of the stream, and she and her grantors used for a time so much of it as was necessary to propel their machinery; but in so doing they were not in the exercise of an adverse right. They used the water because it flowed naturally along the channel and came into their pond. The plaintiff and her grantors have not deprived the defendant or his grantors of the use of the water. They have done nothing to indicate that their use of the water was in any way adverse to the rights of the defendant and his grantors. They have used no more water than they did while the defendant’s privilege was being used, and this quantity gradually diminished until 1876, when the plaintiff ceased to use it; and since that time her privilege has not been used. The plaintiff and her grantors have not erected buildings, or in any way improved their privilege, because of the non-use of the water by the defendant and his grantors. They have done nothing that they could not have lawfully done if the defendant’s privilege had been used from 1851 to 1877, the same as it was theretofore used by William Brown. They have done nothing that can be said to be the exercise of an adverse right. The mere use of the water by the plaintiff and her grantors, under the circumstances disclosed by the evidence, was not conclusive evidence of an adverse enjoyment of such use. Arnold v. Stevens, 24 Pick. 106. The court could not hold, as a matter of law, that the right to draw and discharge water at the defendant’s privilege was lost by non-use. The right, as we have seen, [271] was created by grant, and could not be lost by mere non-use. Mere non-use, for any length of time, of an easement created by grant, will not destroy or extinguish it. In order to extinguish it by non-use there must be some conduct on the part of the owner of the servient estate adverse to, and in defiance of, the easement, and the non-use must be the result of it, and must continue for fifteen years; or, to produce this effect, the non-use must originate in, or be accompanied by, some unequivocal acts of the owner, inconsistent with the continued existence of the easement, and showing an intention on his part to abandon it; and the owner of the servient estate must have relied or acted upon such manifest intention to abandon the right so that it would work harm to him if the easement was thereafter asserted. There was no evidence of such unequivocal acts on the part of the defendant or his grantors, and the court could not rightfully hold that the easement had been lost by abandonment. The view we have taken of the evidence and the law governing this case leads us to the conclusion that the question of where William Brown discharged the spent water from the defendant’s privilege was material, and should have been submitted to the jury. No question seems to have been made but that the defendant took water from the stream in the same manner that William . Brown was accustomed to take it; and if the jury found that he discharged the spent water in the same place where William Brown discharged it, then the defendant was not guilty of diverting the water unless the defendant or his grantors have released or conveyed the right, or the right has been lost in some of the ways indicated in this opinion. Jtidgment reversed and cause remanded.