Alcorn v. Sadler , 71 Miss. 634 ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

The report of this case, as presented on a former appeal and decided, is contained in 66 Miss., 221, where a full and accurate statement of the case, made by the bill and answer, prepared by the reporters, may be seen. The opinion of the court then delivered settled the principles of law applicable to the controversy, so far as it depended on the character of the body of water in dispute. The case was remanded for further investigation, and a vast mass of evidence has been accumulated, with the result of a decree authorizing Sadler to make his excavation so as to rid his land in the reservoir —called a cypress brake — of water put and kept on it by Al-corn’s dam across the outlet at the mouth of Shep’s bayou, but not to draw off the water, as it would be if the dam was not there. The decree recognizes and rests on the assumption that the depression, or reservoir, constituted a natural body of water in its condition before the dam was constructed, and must be maintained to that extent, but, tbat Sadler has tbe right to free bis land from overflow caused by tbe dam.

Alcorn alone appealed from tbis decree, and complains, not of tbe ruling on which it rests as to the character of the collection of water, which accords with bis contention, but tbat tbe decree denies bis claim to the continued enjoyment of bis collection of water by reason of bis dam; and tbe only question now presented for decision is as to Alcorn’s right to maintain and continue tbe flow of water, caused by bis dam, undisturbed by tbe drainage proposed by Sadler. For nearly or quite twenty years before tbis suit the dam has existed, and Alcorn, with the actual or presumed knowledge of Sadler, has exercised tbe privilege of flooding that part of Sadler’s land embraced in tbe depression, or reservoir, with water, for tbe purpose of maintaining a certain height. This user by Alcorn has been adverse, exclusive, continuous, uninterrupted, open and notorious, and, in fact, was known to Sadler from an early day, and, by tbis enjoyment, Alcorn has acquired an easement- in Sadler’s land covered thus by water, which cannot co-exist with tbe right of Sadler to drain off’ tbe water so as to interfere with tbe right thus acquired by Alcorn.

It is not possible to fix with accuracy "the year when tbe dam was last heightened, but there is no room for doubt that, some twenty years before tbis suit was begun tbe conditions as to increased water on Sadler’s land were very much such as have continued ever since. Tbe strengthening, or even heightening tbe dam, from time to time, would not affect tbe right to maintain tbe stage of water produced long enough ago to acquire an easement by lapse of time, and tbe occasionally letting off tbe water at.the outlet, in tbe manner practiced by Alcorn, was not such interruption of bis enjoyment of tbe right exercised to flow all tbe land in tbe reservoir as to break its continuity, for that was secundum subjectam materiam. It is analogous to a right of way, which may be acquired by its use as such, without the necessity for being always on it.

Ten years is the time in this state by which to acquire an easement in land. It would be irrational to hold that an easement may not be acquired by the lapse of time to confer title to the land by adverse possession. The period for acquiring an easement in land corresponds to the local statute of limitations as to land. Goddard on Easements, p. 133; Washburne on Easements, p. 84 et seq.; Horner v. Stillwell, 35 N. J. Law, 307, and cases cited; Bonelli v. Blakemore, 66 Miss., 136; Ryan v. Railway Co., 62 Ib., 162.

Lanier v. Booth, 50 Miss., 410, distinctly recognizes this rule. It does not decide that twenty years is the, pei’iod for acquiring an easement by user, and would 'be clearly wrong if it did.

The suggestions of counsel for the appellee as to Alcorn’s wrongful act in flooding Sadler’s land, and his appeal to a court of chancery, improperly styled a “ court of conscience,” “ to sanctify his wrong,” is equally applicable to any right acquired by time- and circumstances which make it effective to confer right, and cannot have any influence in the determination of the case. A right acquired by lapse of time is just as valid and available as any other.

The decree of the chancellor is reversed and vacated, and, the injunction is perpetuated, and all costs of both the chancery court and this court are decreed to be paid by the appellee.