Bolivar Manufacturing Company versus Neponset Manufacturing Company, 16 Pick. 241

Wilde J. delivered the opinion of the Court. The defendants .move for a new trial, on account of a supposed misdirection to the jury, and because the evidence reported does not support the verdict. The plaintiffs proved, by undisputed testimony, that from the year 1792, to the time of the act complained of, they, and those under whom they derive their title, have claimed and enjoyed the privilege of diverting water by a trench or canal from Mashapog brook to Steep brook above their mills, without any interruption on the part of the defendants, or of those from whom they claim.

But it was proved, that the owners of the Clay meadows, through which the canal was cut, had the right to turn the water off the Clay meadows down the natural channel of the Mashapog for the purpose of enabling them more conveniently to get their hay, and to dig clay in the meadows, for the space of six weeks annually between the months of June and October.

On this evidence, the jury was instructed, that if the plaintiffs and those under whom they claim, had enjoyed the use of the water diverted, subject to the reservation in favor of the owners of the meadows for a particular purpose, as to get hay or dig clay, and for a limited time, such reservation did not prevent the acquisition of a right to divert the water, but operated only as a qualification or limitation of the right acquired ; of which no one could take advantage, but those having an interest in the reservation or limitation, provided the actual use and en joyment of the right of diversion was substantially general and continuous ; and that this direction to the jury was substantially correct, we cannot entertain a doubt.

And it seems equally clear, that if the plaintiffs’ title be in other respects wrell founded, the evidence fully supports the verdict. Indeed, if the jury had found for the defendants on this point, the verdict would have been manifestly against the evidence, or the direction of the court. The defendants derive no right from the owners of the meadows, and they had no more right to disturb the plaintiffs in their enjoyment of a qualified, than of an unqualified easement or prescriptive right.

Then it was objected, that there was sufficient evidence to rebut the presumption of a grant, arising from the inchoate agreement between Crane and Gay and others ; but as this agreement was not executed by Crane until after he had sold out, it is manifest it could not rebut any presumption arising from use and occupation. Before the deed or agreement was executed, it had no binding force, and the use and enjoyment cannot be referred to that unexecuted agreement, and so the jury were instructed.

The evidence also shows, that the use and enjoyment ol the water diverted was uninterrupted for more than twenty years, qualified, as it was, by the occasional turning of it away by the owners of the meadows. After the lapse of twenty years, in 1813, it appears that the owner of a mill, above the defendants’ mill, on Mashapog brook, did interrupt the plaintiffs in the enjoyment of their easement, under a claim of right; but this fact is immaterial, because the plaintiffs’ right was then, if ever, complete, and they did not acquiesce in the interruption, but continued to assert their right.

And besides, there is no connexion between the defendants and the owner of the upper mill. The remaining question is, whether the plaintiffs’ use and enjoyment was adverse, and we think it clearly was. It is objected, that the owners of the meadows turned the water into the natural channel in the dry part of the season each year, and by that means the defendants suffered no damage. The evidence, however, does not show this. On the contrary, the evidence shows, that the owner of the upper mill was in want of water repeatedly.

But if the defendants did not suffer any actual damage, it would be of no importance in this case ; for the plaintiffs’ claim was adverse to theirs, and they might have maintained an action without proof of actual damages, if the plaintiffs had no right to divert the water. The law presumes damage when a man’s right is invaded, and if one suffers his rights to be invaded, and acquiesces in an adverse claim for more than twenty years, it is quite unimportant whether he suffers any actual damages or not. Hobson v. Todd, 4 T. R. 71.

And considering the whole evidence, we think it manifest, that the jury had a right to presume a grant of the right in question to the plaintiffs, and that the verdict is right. Judgment according to verdict.