Buddington and others against Bradley, 10 Conn. 213

Williams, J. It was supposed, by the judge who presided at the trial of this cause, that the same principles which decided the case of King & al. v. Tiffany & al. 9 Conn. Rep. 162. were applicable to, and decisive of, this case. There, the plaintiffs, as owners of the upper mill, claimed, that they had a right to have the waters flow over their land and from their mill, as they had been accustomed to flow; and that the defendants, by their dam, had interrupted that natural and accustomed flow.

The defendants said, that what they had done would not have injured the plaintiffs, if they had continued to use the water as they had formerly used it; but by lowering their hammer-wheel, the injury was brought upon themselves, and would not have happened but for that act. This court, however, held, that the plaintiffs had a right to have their water flow off as it had been accustomed to flow ; and that, if the plaintiffs suffered from such interruption of the defendants, they might recover, although they had not used the water precisely in the same manner, for fifteen years.

In this case, the relative situation of the parties, is reversed; but the principle is the same. The proprietors of the banks and mills below, claim, not that the water is set back upon them, but that it is kept back from them, and not suffered to flow as formerly.

The defendant says, true; but if you had not altered your race-way, or taken away your reservoir, this would not have hurt you ; [if you had not lowered your hammer-wheel, it would not have hurt you.] If the alterations made, in that case, by the plaintiffs, did not justify the defendants, neither can the alterations made by the plaintiffs, justify this defendant. The obstruction of the natural course of a stream, is always done at the risk of being answerable in damages to him who sustains a loss thereby.

The inquiries, then, are, has the defendant obstructed the natural flow of the water ; and have the plaintiffs sustained an injury thereby 1 The defendant, indeed, may protect himself in the obstruction, by an enjoyment for a certain time; but without that, he can have no defence. Such were the principles recently adopted by the court; and they still seem to me decisive of this case. The only distinction that exists between that case and this, is, that by the report of that case, it does not appear, that the plaintiffs altered the flowing of the water at all, as they have done in this.

It was apparent, however, that by lowering their hammer-wheel, they changed their use of the water: they passed it in a different manner from what they had been accustomed to do. Of course, their claim wras not founded upon their enjoyment of it, in any particular manner. The argument for the defendants was there, as well as here, that the plaintiffs had a right to enjoy the water as they had done, for a period of thirty years ; and if the defendants could use the water profitably to themselves, without injury to the plaintiffs’ wheel, as it then stood, they had the right so to do.

That is the precise argument here. There, too, the plaintiffs claimed as here, that they had a right to have the water flow as it__ had been used to flow upon their own site. The court also . held here, as they did there, that the plaintiffs, by the use they hade made of the water, lost none of their natural rights. It seems to me, that the argument for the defendant, confounds the natural rights of the riparian proprietor with the acquired right of the person who has enjoyed the water in a particular manner for a certain time — fifteen years in this state., twenty in England.

The latter acquires a right, by continued enjoyment, the extent of which is measured by the extent of the enjoyment. But the riparian proprietor has annexed to his lands the general flow of the stream, so far as it has not been actually acquired, by some prior and legally ope-I rative appropriation. Per Story, J. in Tyler & al. v. Wilkinson &. al. 4 Mason, 403. And such proprietor has naturally an equal right to the use of the water which flows in the stream adjacent to his land, as it was wont to flow, without diminution or alteration. 3 Kent’s Com. 439. (2d ed.) And in Shury v. Piggot, 3 Bulstr. 339.

Whitlock, J. says, that a water-course begins ex jure natural, and having taken a course naturally, it cannot be diverted. And Hale, Ch. J. says, in Cox v.

Matthews, 1 Vent. 237. that “ if a man has a water-course running through his ground, and erects a mill upon it, he may bring his action for diverting the stream, and not say antiquum molendinum : and upon the evidence it will appear, whether the defendant hath ground through which' the stream runs before the plaintiff’s, and that he used to turn the stream as he saw cause ; for otherwise he cannot justify it, though the mill be newly erected.” And Story, J., in the case before cited, says : “ In their character of mill-owners, they have no title to the flow of the stream, beyond the water actually and legally appropriated to the mills ; but in their character of riparian proprietors, they have annexed to their lands the general flow of the river, so far as it has not been already acquired by some prior and legally operative appropriation.” 4 Mason, 403. * In this case, the plaintiffs have a right to have the water come to them in its natural and accustomed course, not by their artificial channel or into their artificial reservoir, but to flow within its banks, through their lands, as it was wont to flow.

This right they claim, not as mill-owners, but as riparian proprietors. The defendant objects, that the plaintiffs have not used the water, in the same manner as they now use it. The answer to that is, that the plaintiffs’ right to the water does not depend upon their use of it, or their prior occupancy, but upon their natural right to have it flow as it has been accustomed to flow. Their damages may depend upon their application of it: not, however, upon their general past application, but upon their application when it was interrupted.

On the contrary, as the defendants claim to interrupt the natural flow of the water, they must shew a use for fifteen years or more, to justify them in their claim. Thus in Bealy v. Shaw & al. 6 East, 208. 216. the suit was brought in 1799. The works were erected in 1787. The defendants worjis were ancient; but the particular cause of damage existed only since 1791 ; and yet the plaintiff recovered.

And Lord Ellenborough says : “ Independant of any particular enjoyment used to be had by another, every man has a right to the advantage of a flow of water in his own land, without diminution or alteration.” And Grose, J. says : “ The plaintiff had a right to all the water flowing over his own estate, subject only to the easement the defendants might have” acquired. And in a recent case, that of Mason v.

Hill & al. 3 Barn. & Adolp. 304. (23 Serg. & Lowb. 76.) the plaintiff and defendants having lands contiguous, the defendants being above, in 1818, the defendants, by a weir or dam, diverted the water from its natural course. About ten years after, the plaintiff made a channel in his own land, contiguous to the stream, for some manufacturing purposes not previously carried on there. Lord Tenterden cited, with approbation, Wright v.

Howard, 1 Sim. & Stu. 190. and added: “We are all of opinion that the defendants did not acquire a right, by their appropriation, against the use which the plaintiff af-terwards sought to make of the water.” Unless, then, there be a difference between the diverting of water and the obstructing of it, I can see no difference between those cases and Ais. What degree of- obstruction, where there is no malice, shall be the foundation of an action, must always be a question for the sound discretion of the triers. That question was explicitly submitted to the jury ; and they have found the injury to the plaintiffs.

It seems, therefore, to me, that there is no ground for a new trial. The other Judges were of the same opinion, except Peters, J., who was absent. New trial not to be granted.