Julius Norton v. Joel Volentine, 14 Vt. 239

The opinion of the court was delivered by > Redeield, J. The only questions of law which can be raised, either in this court, or the county court, in a case like the present, are those which are expx-essly decided by the referees, and which may be supposed to have affected the final determination of the case by them. There has beén considerable said, at the bar, upon the question, how far the grantee of land, upon which the grantor had placed obstructions in a running stream of water, is liable for the injurious consequences to others, owning land on the same stream.

It seems to be admitted, on all hands, that such grantee may be made liable for the continuance of such obstructions, after reasonable notice to remove them ; but the question made here is whether he is liable without such notice-. The case of Penruddock, 5 Coke R. 101, goes upon the ground that in no case is the grantee liable for such continuance until after notice and request to remove.

That case makes no distinction whether the obstructions are for constant use, like a dam, and where each new act of use would seem to be equivalent to a positive erection of the original obstruction, and thus to preclude the necessity of a special request, and obstructions which are casual, or from neglect, and in no sense connected with the positive use of the land, like throwing dirt or rubbish in a stream of water, to get rid of it, as is sometimes done. There would seem to be more justice in requiring a special request in the latter than in the former case. But in a late case in Connecticut, Johnson v.

Lewis, 13 Conn. 306, the doctrine of the case cited from 5 Coke is applied to the case of a mill-dam, which is as strong a case as could well be put. The distinction between obstructions for use and those of a different character, is rejected, and Penruddock’s case sustained to the full extent. From some of the elementary books upon pleading, I apprehend, that in declaring against an assignee or grantee in such cases, it has been usual to allege a special request. 1 Chit. PL 74. 2 Ib. 333, n. (c.) Tomlin v. Fuller, 1 Mod.R.27.

If it were necessary to decide this case upon this point, I am not at present prepared to go the length of the old cases, nor that in Connecticut; still less am I prepared to say they are not well founded. We think no such question was, or from the facts in the case could have been, raised. The obstructions placed in the north channel, by Safford, in 1823, produced no injurious effects upon defendant until 1835, when plaintiff caused the water to be shut off at his flume, and thus turned all the water off from defendant’s land and rendered his factory useless.

It is a well settled principle, that a servient proprietor of land cannot complain of any use which the dominant proprietor may make of the water in a stream, so long as he is not sensibly affected by that use. The dominant proprietor may divert the water from its usual channel, but if it is returned to the same channel before it reaches the land of the next proprietor below, no one can complain.

But if the water is diverted into a new channel, and then the new channel obstructed, so as to carry off the water wholly in another direction, from that time a right of action accrues to the servient proprietors affected by it. And no prescription begins to run until a right of action accrues, and no right of action accrues until injury is inflicted. Hence it is obvious that no right of action would accrue to plaintiff, until the water was shut off by defendant, at his flume. If this were not so, the plaintiff’s cause of action could have been barred before it accrued.

The defendant might open and shut his gate when he pleased, because it was a mere private sluice or canal. ■ He might continue the obstructions in the old channel, because they had been suffered to remain there more than fifteen years. The absurdity of such a proposition is apparent.

We do not consider it necessary to discuss the question, how far a proprietor of land below defendant’s mill, and who had received the waste water upon his land at a new point, (and not in the old channel,) and who, in faith of its continuance, erected mills, or machinery, and this had continued for fifteen years, could insist upon the continuance of the flow of the stream in its new channel. It is a case wholly dissimilar to the present one. And it is a case not without difficulty. The case of Arkwright v.

Gell, Gale & Whately on Easements, 126, 130, is one, I think, which does not precisely involve this question. That case seems to have been decided upon the very ground that the flow of water, being from the use of mines, was, in its very nature, temporary, and must have been so understood by both parties.

The discharge of an eave-spout, or the drainage of lands, or mines, or any other temporary flow of water, and where positive and artificial means were necessary to keep up the stream, if continued for more than fifteen years, might give the right to the dominant owner to flow the water upon the land of the servient owner. For the acquiescence in what would be a nuisance, unless done by permission, for the term of fifteen years, will, in law, raise a presumption of a grant.

But when this is for the benefit of the person doing it, and he has to make use of positive means to continue it, no presumption whatever arises that he has contracted to continue it. In the cases supposed, every reasonable man would expect the owner to remove his eave-spout, or his house even, to discontinue the drainage of his land, or of his . , mines, at will. Judgment affirmed.