Wood v. Edes , 84 Mass. 578 ( 1861 )

Hoar, J.

The case stated in the plaintiffs’ bill, and opened in argument upon the proofs, presents nothing but a reasonable use of the water by the defendant as a riparian proprietor, and therefore fails to show any wrong done to the plaintiffs, for which they are entitled to relief. We are of opinion that to retain the water by a dam for the purposes of' a fish-pond, constantly maintained, and therefore allowing the natural flow of the water to pass unimpeded to the plaintiff’s mill, is a just and reasonable exercise of the defendant’s right to use the water as it passes through his land. In the absence of any grant, prescription or contract, the plaintiffs have no legal right to use the defendant’s land as a reservoir, except so far as the erection of their mill-dam may necessarily cause the water to flow back upon it; and the right to cause it thus to flow cannot restrain the defendant from making a reasonable use of the water on his own land, provided he returns it all to its natural channel when it leaves his land, and allows it to flow thence regularly to the plaintiffs’ land below.

The other ground on which the bill seeks for relief is equally untenable. The plaintiffs aver that, trusting to a license from the defendant to use and regulate the flow of water through the defendant’s land in the manner most serviceable to his mill, he has erected expensive buildings and machinery; and contends that equity will not now allow the license to be revoked to his prejudice. The only evidence of the license is the testimony of the plaintiffs themselves; and the defendant, in his answer under oath, expressly denies any license, except one which should terminate at his own pleasure. Without intending to decide that in any case equity would support a claim of this kind upon the unsupported testimony of one party against the denial of the other, we cannot here find proof of any such conduct of the defendant as should bar him from revoking the license. It appears, on the plaintiffs’ own showing, that they applied for a lease or contract for the use of the water for a specific time, and were distinctly refused. 'This application and refusal distinguish the case from all those which have been cited in which a license, acted on by the other party, has been held in equity to be irrevocable. We think it put the plaintiffs on their guard, and that the whole arrangement amounted to a mere license during the defendant’s pleasure, with sufficient notice to them that no other would be granted. If, under such circumstances, they incurred expenses the value of which to them would depend upon the continuance of the license, they acted at their own risk.

Bill dismissed with costs.