Jones v. Proprietors of the Portsmouth Aqueduct ( 1883 )

The question whether the use made by the defendants of their land and of the water is or is not a reasonable use as against the plaintiff, is a mixed question of law and of fact, and must be determined at the trial term.

The only question of law raised by the case is that of estoppel. This question presents no difficulty in view of the finding that "the plaintiff and defendants, at the time of making the reservoirs, had equal knowledge of the character of the land, the sources of the brook, and of the location of the reservoirs, and had reasonable ground to believe that the effect of the works might be to diminish somewhat the quantity of water which would otherwise accumulate in the marsh and supply the brook," for it is quite apparent that, upon these facts, every element of estoppel is wanting. At most the plaintiff was silent merely, and it is familiar law that the silence of a party does not create an estoppel where the other party is fully acquainted with the facts. Odlin v. Gove, 41 N.H. 465; Big. Est. (2d ed.) 467; 1 Sto. Eq. Jur. (12 ed.) s. 386; 6 Wait Act. Def. 707, and cases cited.

Judgment will therefore be entered for the plaintiff, or for the defendants, as the trial judge may find upon the question of reasonable use.

Case discharged.

CARPENTER, J., did not sit: the others concurred.