Rogers v. Bruce ( 1835 )

Putnam J.

afterward drew up the opinion of the Court. The case finds, that in 1804, Goodridge purchased the estate which was Joshua Wood’s, including the mill site ; that in 1807, Goodridge erected a saw-mill near where that of Wood stood, repaired the dam at the outlet of the. pond, and, from that time to the fall of 1831, had the peaceable and exclusive use of the dam for drawing water from the pond as he wanted it for the use of his mill. Thus Goodridge acquired a right to the water to be stopped by the dam which he so repaired, to the height of the dam, as a reservoir for mill purposes, to be drawn as he should want it. The right was as perfect as if the defendants, who owned the land between the pond or reservoir and the mill, had granted the privilege to Goodridge and his heirs and assigns. And the defendants cannot legally obstruct the plaintiff, claiming under Goodridge, in the exercise of that right.

The case finds that the defendants, in 1831, erected a nexv dam at the outlet of the pond much higher than the old one was. But the jury found, that the defendants had not withheld or diverted the water to the injury of the plaintiff.

Now the Court is of opinion, that the dam which the defendants built, up to the height of that which Goodridge built, might have been adopted and used by him, and that he might have used the flume and gate, just as he would have right-' fully used the old dam and flume and gate, to draw water from the pond or reservoir, whenever he wanted it for mill purposes ; and of course, that the new dam was no invasion of the plaintiff’s rights.

If the defendants could make any use of the water which would be raised above or higher than the top of the old dam repaired by Goodridge, they (the defendants) might do so, provided that they should not thereby prejudice the right of Goodridge in any manner. But when the water should be drawn down so low, as to stand at the height of the top of the old dam, the defendants must stop, and could not legally draw any below the top of the old dam, unless with the leave and consent of Goodridge and of those who claim under him. And this, for the reason above stated, that Goodridge had acquired a right to the pond or reservoir to the height of the old dam : and the defendants cannot divert it or obstruct the plaintiff in the exclusive use of it as a reservoir for mill purposes.

But the plaintiff is riot prejudiced by the defendants’ raising the water higher than the old dam, unless the defendants should use it in some manner that would be injurious to the plaintiff; for example, by suffering the surplus water to collect, and then to flow down like a torrent and carry away the works of the plaintiff.

The Court is of opinion, that the plaintiff would have been entitled to damages for any diversion of the water at the north end of the pond, which should have been occasioned by the high dam which the defendants had built, if the evidence had been sufficient. But such damage has been negatived by the jury. And so, if the plaintiff should be obstructed or hindered from drawing water through the flume and gate erected by the defendants, whenever he should want it for mill pur poses, the plaintiff would be entitled to his action for damages for such obstruction.

The rights of the plaintiff are preserved by establishing the right to draw the water at the new dam, as is before mentioned. And the right of the defendants is confined to drawing what shall be above or higher than the top of the old. dam ; and that is to be done without prejudice to the plaintiff, as is above stated.

But inasmuch as there has not been any disturbance in fact, of the plaintiff ’s right, the judgment must be for the defendants, according to the verdict.