Sherwood v. Burr

Mitchell, Ch. J (after stating the case.) The first ground urged for a new trial is, that there was a misdirection or omission of duty in the court, in declaring to the jury that it was unnecessary then to decide the question whether the deed from Reuben Sherwood to the plaintiff was affected by, or came within, the statute against selling or purchasing disputed titles. The court are under no obligation to decide every question of law proposed by the counsel, if they are of opinion it does not apply to the case. It would be extraordinary 10 put questions to the court not applicable, and then move for a new trial because the court would not decide the question impromptu. The object of the statute, as the title purports, was to prevent the buying and maintaining disputes in bargains, and other alienations of lands, &c. It is thereby enacted^ “ that all bargains, sales or other alienations of lands, tenements, or hereditaments, whereof the vendor or grantor is disseised, or ousted of the possession, by the entry, possession, or improvement of any other person, (the present possessor only excepted,) shall be null and void.” The statute contemplates that species of property only of which the vendor may be disseised, or ousted of the possession, by the entry or possession of anosher. The terms “ disseised, or ousted,” are used in their technical sense. A person can with no propriety of expression be said to be disseised of a right for the recovery of which a personal action only lies; but of such only as may be restored to him by action of ejectment or real action ; these are the only actions which will lie in favour of a person disseised, or ousted, to regain possession. [249] To apply this to the case under consideration. The defendants did not, by raising their dam, and thereby im-peeling the plaintiff’s grantor in the use of his mill, , . . , , . ._ tt enter upon and disseise the grantor of the plaintiff. He was never ousted of the actual possession of any lands or tenements, but only hindered and obstructed in the use of a right incident to the land; nor would ejectment, or any other real action, lie to recover the possession of this right, which was not land, but an incident only to the land deeded to the plaintiff by his grantor; and not, therefore, a right intended by, or included in, the statute. As well might it be pretended that- a man, by filling a ditch in his own land, and thereby preventing the water from draining off from his neighbour’s land, or building a smelting house, or erecting any other nuisance, thereby prevented his neighbour from selling the land with the right to drain off the water l>y the ditch, or the enjoyment of wholesome air, while the nuisance existed, and subjected the owner to a penalty, if he should sell the land with its appurtenances. The plaintiff, by his purchase and deed, acquired all the rights which his grantor had. And here it is unnecessary to consider the terms of the original grant from the town of Fairfield to either party. The mill of the plaintiff had been erected for more than forty years; and, during the whole of that time, except the last ten years, the stream of water had been suffered to flow off below without interruption, or any obstruction to the injury of the owner of the fulling mill. It is, therefore, now too late to deny the plaintiff’s right after so long an enjoyment of the privilege, unless it is lest by some act or negligence of his, or those under whom he claims. In analogy to the statute of limitations, which gives title to land by fifteen years’ adverse possession, the plain» tiff must be considered as having acquired a right to use and improve this stream of water in the manner it has been improved for thirty or forty years, whatever his [250] title to the privilege was by virtue of the grant from the-town of Fairfield. If necessary to support the plaintiff’s title to the privilege, the law would presume a grant even from the defendants, or those under whom they hold. The defendants, by their acquiescence for such a length of time, are to be considered as giving this construction to their grant. Twenty years’ undisputed enjoyment of any easement appurtenant to land is sufficient in England to raise the presumption of a grant; and in Bealey v. Shaw et al., 6 Fast, 214. Lord Ellenborough said, that twenty years’ exclusive enjoyment of water, in any particular manner, affords conclusive presumption of right in the party so enjoying it. Has the plaintiff lost his title to the privilege by any act of his own, or by negligence ? No such act or negligence appears in evidence; he and his grantor have taken the benefit of the privilege for more than forty years; and his possession of it has been adverse to, and exclusive of, all others. The defendants show no right to raise their dam, and obstruct the water running from tfie mill of the plaintiff, except what arises out of their own act of raising their dam, which is of recent date, about ten years since. Although at first, by virtue of the grant to Joseph,Perry, the dam might have been raised to its present height; yet, after a usage to the contrary for so great a length of > time, and after other waterworks have been erected on the stream above, which must be lost and destroyed thereby; the right ought to be considered as lost by a non-user of it, and by an adverse possession inconsistent with such right. < The defendants claim the use of this right for ten years only to have been in them. If fifteen years’ ex-, elusive adverse possession is the least term of time which can give title to freehold estate, surely as long quiet enjoyment will be required to create a title of the natures in question. Hence it appears that no new trial ought to be granted. [251] Baldwin, J. I have'no doubt but that by the grant of the lower mill, the, grantee had a right to raise his dam so high as to take the full benefit of the water, and so as to use it to the best advantage for the purpose of grinding. The question is, whether he has lost it ? It is not necessary in this case to determine how far he will be bound by his own cotemporaneous practical construction, by raising his dam to a certain height, and so continuing it for seventy years; a stronger principle here applies. He has, while his dam remained so raised, permitted another grantee to erect and use, undisturbed, for a period of thirty years, a dam and mill so situated above his as to be free from injury, as his dam was then erected. Thus circumstanced, it appears to me clear, that the second grantee has acquired a right in the use of his mill-seat, free from the interference of the first. The other judges were of the same opinion. New trial not to be granted.