Gilford v. Winnipiseogee Lake Co.

Smith,* J. If the instructions requested had been given, it is not improbable that the jury might have understood therefrom, — first, that the height of the dam, and not the height of the water, is the tost of a prescriptive right; second, that the adverse enjoyment “ need only be coextensive with the wants of the party claiming the right.” The first proposition is erroneous. Merely maintaining a dam for twenty years, without thereby raising the water on the plaintiffs’ land often enough to give notice that they claimed the right to flow it, would not give the defendants a prescriptive right to flow the plaintiffs’ land as high as it could be flowed by means of that dam. The mere erection and maintenance of the dam did no injury to the plaintiffs, and furnished them no ground upon which to maintain an action at law against the defendants. ee It is not the right to erect or maintain a dam upon their own land which the defendants seek to establish against the plaintiffs, for this right they have without any prescription. The defendants may build aud maintain a dam of any height on their own land, and, unless it pens back the water upon the plaintiffs’ land, the plaintiffs cannot complain, and could not maintain a suit for damages or for the invasion of their right.” “ It is not the height of the dam, but of the water, which does the injury; ” “ it is not the dam, but the flowing of the land thereby,” of which the plaintiff’s now complain. Until the defendants actually raised the water on the plaintiffs’ land by means of their dam, they did nothing for which the plaintiffs could have recovered nominal damages, “ in the assertion and vindication of an invaded right.” See Sargent v. Stark, 12 N. H. 332. The erection of the dam by the defendants on their own land did not “ render the plaintiffs’ land a servient tenement.” To gain a prescriptive right, there must be something more than a mere intention to do some act on the plaintiffs’ land ; there must be acts done on the plaintiffs’ land. The land-owners on the shores of this lake are not bound to make annual pilgrimages to Lake Village to measure the dam of the Lake Company, and employ an engineer to calculate whether, if kept tight and full, it can be used [266] to throw water on their land. See Zabriskie, Chancellor, in Carlisle v. Cooper, 4 C. E. Green (N. J.) 256, p. 260. The time of prescription does not begin to run against a land-owner “until there has been an actionable invasion or infringement of a right.” The defendants rely on Cowell v. Thayer, 5 Met. 253; Ray v. Fletcher, 12 Cush. 200; and Jackson v. Harrington, 2 Allen 242. But the weight of authority, as well as of reason, seems to us opposed to the defendants on this point. See Stiles v. Hooker, 7 Cow. 266; Mertz v. Dorney, 25 Pa. St. 519; Sargent v. Stark, 12 N. H. 332; Burnham v. Kempton, 44 N. H. 78, p. 90; Lawrence, J., in Cooper v. Barber, 3 Taunt. 99, p. 110; Zabriskie, Chancellor, in Carlisle v. Cooper, 4 C. E. Green (N. J.) 256; Cleasby, Baron, in Courtauld v. Legh, L. R. 4 Exchq. 126, p. 130. If the plaintiffs had known, while the dam was building, that the defendants supposed they had a right to flow the plaintiffs’ land by means of that dam, and that they intended to do so, and the plaintiffs, knowing this, had kept silent, it might be that this silence would prevent their now obtaining from a court of equity the extraordinary remedy of an injunction. See cases cited in Bassett v. Company, 47 N. H. 426, p. 441. But, in the case at bar, it does not appear that the plaintiffs had knowledge of the defendants’ intention to flow, or, that the defendants supposed that they had the right to flow ; nor do the plaintiffs'ask for the extraordinary and summary remedy'of an injunction. The second proposition is also untenable. It has been suggested that “ the enjoyment need only be coextensive with the wants of the party claiming the right; ” that “ how many times the right has been exercised is not the material question, if the jury are satisfied that the claimant exercised it as often as he chose; ” and it has been said, in reference to these very defendants, that, if the Lake Company “ claimed the right to keep the water in their dam at its full height whenever they chose, and had water to fill it, and exercised that right for twenty years, agreeably to their claim, it would be conclusive that they possessed the right; ” — argument of counsel in Lowe v. Carpenter, 6 Exchq. 825, p. 828; Patteson, J., in Carr v. Foster, 3 Q. B. 581, p. 588; Bell, C. J., in Winnipiseogee Lake Co. v. Young, 40 N. H. 420, p. 436. So far as these statements imply that the user need not be literally incessant and unintermittent during every moment of the twenty years, they are correct. But they omit a necessary limitation. The acts of user, although not required to be unintermittent, must be of such a nature and of such frequency as to give notice to the land-owner that the right is being claimed against him. The claimant may not “ have occasion ” to exercise the right claimed more than once or twice during the twenty years. Such use would not be likely to give notice to the land-owner that a right was being claimed against him, and the law could not impute to him acquiescence in a claim, of the existence of which he had no reasonable indication. To permit an easement to be acquired by such an user would be subversive of the whole theory of acquiring title by prescription, and [267] would frustrate the object of the law in requiring twenty years5 enjoyment. The long submission and acquiescence of the land-owner is the ground for denying him the privilege of subsequently disputing the right. One test question is, Has the land-owner had reasonable cause, from the actual” use made of his land, to believe, during the entire period of twenty years, that the right was being claimed against him ? If the use has not been such as to afford reasonable indication of the claim, the land-owner’s right to object is not barred. The court did not err in refusing to give the instructions requested. Judgment on the verdict. Footnotes [*] Bellows, C. J., and Foster, J., did not sit.