Chapman v. Thames Manufacturing Co. , 13 Conn. 269 ( 1839 )

Sherman, J. '

It is assumed in the motion, that the natu-sand-bar would raise the lake as high as the present dam, an^ cauge Water to overflow the plaintiff’s land to the game extent. But the mills and artificial channel are ancient; 111,11 and therefore, the plaintiff and those under whom he holds had become entitled, by length of time, to have the water kept down to the level to which it had been accustomed to flow since their establishment. This the motion admits, but resists the claim which the plaintiff makes on that principle, upon the ground, that he has, in fact, sustained no injury by the dam, inasmuch as natural causes would have occasioned an equal obstruction, had the defendants erected no dam, but abandoned the lake altogether. To this effect the defendants requested the court to charge the jury ; — but the request was denied. Upon this ground only a new trial is now sought. The exception taken to the admission of evidence is properly waived ; and in the motion there is no objection to the charge but for its variance from that requested, although others have been suggested in argument. The only point, therefore, for our consideration, is, whether the superior court erred in not giving the charge requested by the defendants.

The plaintiff and those under whom he holds, having acquired the right to have the water kept down to the level to which it was accustomed to flow after the removal of the sandbar, they might lawfully enforce that right, if the water, even by natural causes, became obstructed. They might enter on the place, and clear the channel, causing as little damage as possible to others. No proprietor of the place where the obstructions might accumulate could lawfully object to their removal, whenever they should become an annoyance to the land in question. Had the sand-bar, by the natural operation of the water, become already raised to its original height, and the plaintiff’s land so far overflowed, that the dam of the defendants, at the time of its erection or since, would have added nothing to the actual injury, still, the erection of the dam would, upon well established principles, have entitled the plaintiff to this action. Thus, in the case of Bower v. Hill, 1 Bing. New Cas. 549. the plaintiff had the right of passing from his close to the river Nene, in Warwickshire, through a navigable channel over the lands of the defendants and others, which lay between the plaintiff’s close and the river. This channel bad been gradually filled up between the plaintiff’s land and that of the defendants, by the operation of natural causes, so as to be unnavigable. Under these circumstances, the defendants made a bridge or tunnel between their own land and the river, that would have destroyed the navigation, had those oh-structions been removed. But they were still in existence ; and the jury found specially, “ that before the erection of the bridge by the defendants, the passage was obstructed, so that the plaintiff could not have the use of it.” The judge at Nisi Prius thereupon directed a verdict to be taken for the defendants. But on a rule to shew cause, the court of Common Pleas granted a new trial. Tindall, Ch. J., in giving their opinion, says : “ It is no excuse to the defendants that the plaintiff has voluntarily suffered an accretion of the mud, which he might remove, at any time when he thought fit. The voluntary suspension, by the plaintiff, of his exercise and enjoyment of a right, can form no justification to the defendants for preventing him from the possibility of enjoying it. ” “ If acquiesced in, for twenty years, it would become evidence of a renunciation and abandonment of the right of way.”

In the case now under consideration, there has been, as yet, no such accumulation. But had there been, the plaintiff might have removed it. While the plaintiff’s lights were thus unimpaired, they were directly violated, by the erection of the defendants’ dam.

But the defendants requested the court to charge the jury, “ that if they should find, that without such flume or conduit, and from the operation of natural causes, over which the defendants had no controul, the lands of the plaintiff would have been flowed to as great an extent as they had been, by the defendants’ dam, the plaintiff wmuld not be entitled to recover for such injury.” This instruction would have been erroneous, for several reasons.

First, it would have presented an inadmissible hypothesis, as the defendants had a complete controul of these natural eauses, by the exercise of their right to remove the obstructions thus occasioned, as the owners of the mills had ever done.

Secondly, it would have erroneously assumed, that the plaintiff might not lawfully clear the ditch, when necessary for the enjoyment of those rights with which time liad invested him.

Thirdly, it would have contravened the salutary principle, . . . m the case referred to above, and in many others, ¿ jjat an ac^ \VT¡ich occasions no other damage than putting at hazard those rights, which, if the act were acquiesced in, would be lost, by lapse of time, is a sufficient ground of action. Upon this principle, the drawing of a seine in the several fishery of another, although no fish are taken, entitles the latter to damages, merely on the ground that a repetion of such acts, if acquiesced in, for fifteen years, would divest the proprietor of his rights.

Lastly, such a charge would have involved the erroneous assumption, that if such obstructions already exist, in a way or water-course, as utterly prevent its present use, others, of a permanent nature, may be added with impunity.

■ For these reasons, a compliance with the request of the defendants was properly declined, by the superior court; and we should, therefore, not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.