Agawam Canal Co. v. Edwards , 36 Conn. 476 ( 1870 )

Butler, J.

These cases involve the same facts and principles and having been argued together will be so considered in this opinion.

It is apparent that the gist of the controversy relates to the diversion of Strap Brook. For aught that appears ■the petitioners, the Agawam Canal Company and Rockwell, could have closed the mouth of the canal at the pond at any time, and thereby secured the waters of the ponds ; but in so doing they would practically have abandoned those of the brook. By their present dam they secure both. In effect then they ask the aid of the court to enable them to maintain their present dam in order to secure the waters of the brook. We think their bill must be dismissed and that the respondent Edwards is entitled to relief.

We are not satisfied that the Agawam .Canal Company and Rockwell have any interest in the diverted waters of Strap Brook, or any legal and enforceable right to have them restored to their original flow.

Those petitioners are riparian mill-owners within the water shed of Westfield River—the Agawam Canal Company on the main stream, and Rockwell on one of its branches, known as Southwick Brook. Prior to 1826 Strap Brook was within that water-shed, and a tributary of Southwick Brook and Westfield River. In that year the stream was lawfully taken by the Farmington Canal Company pursuant to authority conferred upon them by the legislature of Connecticut in the exercise of their right of eminent domain, and by the construction of a new and deeper channel, transferred from its old bed, and the water shed of Westfield River, into and through their canal to Manetic Brook and the water shed of Farmington River. Such has since been its natural flow, and would now be if left to itself. The Agawam Company purchased their lands and constituted their mill-site in 1836, and Rockwell-purchased his mill and site in 1848. At the time they severally purchased, the transfer of Strap Brook had been lawfully made, and it was not then a tributary of Westfield River, or within its water shed. What right then did they acquire in or to the flow of its waters by the purchase of their sites ?

The principle contained in the maxim, “ Cujus est solum, ejus est usque ad coelwm,” gives to a riparian owner an interest in a stream which runs over his land. But it is not a title to the.water ; it is a usufruct merely; a right to use it while passing over the land. The same right pertains to the land of every other riparian proprietor on the same stream and its tributaries; and as each has a similar and equal usufructuary right, the common interest requires that the right should he exercised and enjoyed by each in such a reasonable manner as not to injure unnecessarily the right of any oilier owner, above or below. Each is therefore required by law to let the water flow on as it has been wont to flow, that all may receive and enjoy it on their land; and no one can divert or detain it, unreasonably, without doing an injury to the usufructuary right of others below him, in the nature of a nuisance, which may be abated, and for which an action on the case will lie. It is apparent that the right of a riparian owner thus to abate or sue is not 'founded on a title to the water or any property in it before it enters upon his land, but on the ground that an injury or tort, in the nature of a nuisance, has been done to his right to receive and enjoy upon his land the flowing and common element. He has no legal right therefore but that of reception and enjoyment of the natural flow of the water, as a land owner and on his land, that can be injured.

It is a well-settled rule that a grantee of land takes with it such incidents and appurtenances only as are annexed to or a part of it at the time of the grant. If Strap Brook had been within the water shed of Westfield River and a tributary of it at the time the petitioners took their respective grants, a subsequent or continued, but not previous, unlawful diversion of it would have been an injury to an incident right which would have passed by the grants, unless such diversion had continued adversely for fifteen years and the right was lost. But the brook was not then a tributary of that river or within its water shed, and no present right to the flow of its water then existed or passed as an incident to the granted lands, unless it was a contingent, reversionary right to have the flowage of the stream restored to its original water shed after the canal was discontinued. Could such a right exist as an incident to the lands under the circumstances and pass by the grants to the petitioners ?

• Strap Brook was diverted from the water shed of Westfield River into Farmington River by the canal company pursuant" to authority given by the 5th section of their charter. That section authorized them, with the approbation and consent of a board of commissioners provided by flic charter, among other things, “ to enter upon and take possession of and use, all and singular, any lands, waters and streams necessary Ac.,” and. further provided for an assessment of damages by the commissioners in case of disagreement with those interested, and closed with the following clause: “ and the lands, waters and streams thus taken shall be owned and possessed by said corporation for the use of said canal forever.” The brook was taken under that authority, and of course adversely, and if unlawfully taken the rights of the petitioners or their grantors were lost at the end of fifteen years. But if, as is . conceded, it was lawfully taken, and as claimed, for the use of the canal only, and the right of ownership and possession ceased upon the abandonment and discontinuance of the canal in 1848, we are unable to see how, from the nature of the case, any contingent, reversionary right, dependent on such abandonment and discontinuance, could exist in the grantors of the petitioners. Their rights as riparian proprietors on Westfield River and South wick Brook were not rights of property in Strap Brook or its waters, when it was lawfully taken and diverted from its water shed, but a mere right to treat a riparian owner there, or other person who unlawfully diverted it, as a tort-feasor to their riparian rights in and over their respective lands and mill-sites. A reversionary, incidental, transferable interest implies a property in the thing taken or granted, when taken or granted,. and cannot, we think, be predicated of a mere right to treat a diversion of the flow of water as a nuisance.

If the petitioners are right in the claim that they had such a reversionary right to the restoration of Strap Brook when the canal was abandoned and discontinued, it must follow that it was the legal duty of the canal company, incident to the taking and abandonment, to restore the brook in question to its natural bed and flow, and the continued diversion thereafter constituted an injury and nuisance to the rights of every riparian owner on Southwick Brook and Westfield River, and the restoi’ation could have been compelled by any one of them by repeated, successive actions. The claim is a novel and far-reaching one, and if well-founded would require the canal company to restore every stream or water-course taken by them, the filling up of the canal, if demanded by the owners of land, and a general replacement of everything to its original condition. We are satisfied that such a duty on the part of the canal company and its successors could not have been contemplated by the legislature who granted or the company who accepted the charter, or by the riparian. owners from whose water shed and use the brook was diverted.

Something has been said in relation to the non-payment of the assessment made to the mill-owners of Soutliwick Brook in 1836. In the view we take of the case, it is unimporlant' whether that assessment was paid or not. The company took and diverted the brook, lawfully or unlawfully, and they took it in 1826. If unlawfully, the right of the mill-owners was gone at the end of fifteen years. If lawfully, the question of payment was immaterial. But, as the assessment was in favor of and against other persons than those who are parties to this proceeding, and' the committee has not found either wa.y in relation to the payment, and thirty-four years have since elapsed, that payment may well be presumed.

Such are our present impressions in respect to the rights claimed by the Agawam Canal Company and Rockwell ’ in these cases. But as the existence of those rights has been assumed rather than shown, aiid the points we have considered Were not fully argued, and are novel and peculiár in their character, we prefer to leave them open, and base our decision upon other grounds.

Other intricate and close questions have been raised and discussed in relation to the rights of the respondents Case and Owen to have the waters of the brook, including those of Duck Pond, flow undisturbed in their present channel to their mills. ' A consideration of those questions will also be • waived as unnecessary, There are other and conclusive reasons why the bill of the Agawam Canal Company and Rockwell should be dismissed.

We aid all satisfied that they do not own the whole of the land on which their dam was erected.

The deed of Rockwell from Emeline Hall and her husband, conveyed an inherited interest in her to the extent owned by Townsend Edwards, but we are satisfied that he had no title east of the centre of the canal. He formerly owned, at that-point, on both sides of the canal, and the adjoining proprietor on the south, Verannus Stevens, also owned on both sides of the canal. In 18&5, for their mutual convenience, they exchanged lands, Townsend conveying all his land east of the canal to Yerannus, and the latter conveying all his, west of the canal, to Townsend, in order that each should own upon one side of the canal only, and that that should be a boundary between them. The deed of Edwards to Stevens bounded the lot conveyed to him, as the committee finds, “ west on said canal,” and it is claimed, on the authority of Bishop v. Seeley, (18 Conn., 393,) that the deed carried him no farther than the top of the bank; but wo think otherwise. The language of the deed in that case was “ northeasterly by a line parallel with the northeasterly line of said canal, two feet therefrom.” The grantor there was the owner of the entire tract and was conveying the land on which the canal was constructed, and the court held that the line intended by the deed was the outer line of the excavation. Here the grantor was conveying the land adjoining the canal by way of exchange, and for the purpose of making the canal a boundary between him and the grantee, and a different construction should be given to the deed.

The parties were exchanging lands on opposite sides of an artificial water-course, intending to make that water-course a boundary between them. The Avords “ on the canal ” do not import the line of the excavation or necessarily the water line, for the canal is neither a natural pond nor a stream. In Bishop v. Seeley the court quote from Webster’s dictionary to show that the term “ canal” applies to the excavation, but Webster also says that one of its meanings is “a water course,” and Worcester has a sinfilar definition. The truth seems to be that the words “ on the canal” may be used to designate the line of the excavation, or the excavation to the line of the water, or the water course generally and as such, according to circumstances. Here the parties were farmers, and were exchanging lands for mutual convenience on the opposite sides of an artificial water course, intending^ to be a permanent boundary between them. In Warner v. Southworth, (6 Conn., 471,) lands were bounded on a ditch six feet wide, and the court held that, as it was intended as a boundary between the proprietors, although Die grantor then owned the land on both sides, the grant should be construed to extend to the centre of the ditch. The principle of that case is applicable here. It seems impossible to look at the situation of those men, their object in exchanging lands, their intention to make the canal a boundary, the fact found by the committee that it was afterwards considered by them as a boundary, and the further fact that they subsequently agreed that the centre of the canal should be the line, and built their fences as near that line as practicable, without being satisfied that such was intended to be the effect of the deed. We are satisfied that it carried Stevens to the centre of the canal.

And it is also found by the committee that in 1851, after, the waters were let out of the canal, and the waters of Strap Brook and the ponds were flowing unrestrainedly through it, and it no longer served as a protection against cattle, it was agreed between Edwards and Stevens that the centre of the canal should be the dividing line and each should erect a portion of the fence on his own side. The fences were erected accordingly. Looking to the comparatively small amount of water then flowing through the canal, it is apparent that those fences must have been erected at or near the bottom of the slope. The occupation of the parties was thereafter in accordance with that division, and the deed of Emeline Hall to Rockwell was inoperative under the statute in relation to pretended titles to the extent of such occupation, and the petitioners for that reason also are not entitled to maintain their entire dam as erected.

The right of a riparian proprietor to entei' upon th'e land of another to abate the nuisance of diversion, exists only against the wrong-doer. None of these respondents are, tortfeasors in relation to the diversion in question, and the petitioners have no right to enter upon their lands, or to flow them, either in or out of the canal, for the purpose of regaining the use of the diverted waters. If they possessed the rights they claim to possess, they should have been exercised in restoring Strap Brook to its original bed and flow. The right of Arnold Edwards and of Griffin and Stevens to the entire control of their lands, as left by the canal company when they abandoned the canal, is perfect, and their right to use the bed of the canal, and to fill it up or otherwise control it, cannot be doubted.

The petitioners cannot justify therefore the ponding of the water in the canal upon the lands of Griffin and Stevens and Arnold Edwards, or the flowage of the land of Edwards, by the erection and maintenance of their dam, and they are entitled to no assistance from the court to enable them to maintain it. •

On the other hand, the right of Edwards to be relieved from the ponding and flowage of his land by the removal of the dam is perfectly clear, and for these reasons the bill of the Agawam Canal Company and Rockwell should be dismissed and the petition of Edwards should be granted, and the Superior Court is so advised.

In this opinion the other judges concurred.