Watrous v. Watrous ( 1820 )

Hosmer, Ch. J.

The jury, under the charge of the judge, undoubtedly must have found, that Benjamin Watrous had acquired no right, by occupancy, to overflow the plaintiff’s land ; and that he did overflow it, to her damage.

In the examination of the subject presented by the motion, it is unnecessary to go further back, than the year 1807. At this time, and ever since, Gideon Watrous, and after him, his widow, the plaintiff, owned the land overflowed with water, and the grist-mill, with its privileges and appurtenances. It, however, is claimed, by the defendants, that Benjamin Wat-rous had a right to supply his saw-mill, from the pond, occasioned by the dam of the grist-mill, and for this purpose to erect and repair it; but for this proposition, it is difficult to discern a plausible pretence. He has acquired no such right, by an exclusive and uninterrupted exercise of it for fifteen years; nor by grant or licence.

The award of arbitrators, made in the year 1797, had no other effect, than to determine what sum of money Benjamin should pay Gideon, for the overflowing of his land, “ caused by the dam erected for the benefit of the grist-mill.” When Benjamin relinquished his right to the grist-mill, by the deed of release, dated the 25th of June, 1807, the above-mentioned award could have no further operation. It never had any reference to the saw-mill, or the right of drawing water for the use of it; but if it had, the award merely ascertained what sum should be annually paid, without granting any property whatever.

I entirely concur with the judge at the circuit, “ that by the deeds and writings, Benjamin Watrous had no right or authority to overflow the land in question.”

The other Judges were of the same opinion.

New trial not to be granted.