Winnipiseogee Lake Co. v. Young , 40 N.H. 420 ( 1860 )

Bell, O. J.

The bill in this case, in its general frame and most material allegations, as to the complainants’ title to their dain, and right to flow, very closely resembles the bill recited in 29 N. H. 433. As to the first point raised by the demurrer, it is in the same terms. In that case the bill was taken as confessed after repeated appearances, and the defendant then moved that the bill should be dismissed for want of jurisdiction; among other reasons, because it was not stated that the complainants were a corporation. ' But the court say that the facts alleged in the bill are all admitted to be true, and all defects in the mere form and frame of the bill are waived,, where it is taken pro confesso ; and, consequently, the only questions open on the motion were the jurisdiction of the court over the parties and over the subject matter, as coming within the range of equity proceedings. The defect complained of, however material it might be, raised no question of jurisdiction; and it was intimated by tbe court that, if there was a material defect in the description of tbe parties, it must be taken advantage of by demurrer, or by a plea in tbe nature of a plea in abatement. Tbe rule is generally that a party who applies to tbe court for relief, shall state bis own name and addition, so as to make it clear who is intended, and to preclude all probability of mistake. Story Eq. PL, sec. 26.

■ Tbe practice, we think, is nearly universal, that a corporation is described in its bill by its corporate name, with tbe addition of tbe fact that it is a corporation duly established by law in such a State, and having its place of business at such a place ; and a corporation defendant is described in tbe same way. In the case of public corporations created by public laws, tbe court is officially to take notice of tbe corporate character. As in Withers v. Warner, 1 Str. 309, tbe court were of opinion that they must take notice that London is a city, it being mentioned to be so in several acts of Parliament. But in tbe case of private corporations, created by charters or private acts, tbe court is not merely not bound to take notice of tbe corporate names as such, but they cannot officially take such notice. Tbe party is bound to allege it,' as a fact to be proved, if be would avail himself of it. Arch. Civ. Pl. 108. If, then, a party does not allege tbe corporate character of either party, plaintiff or defendant, it must be assumed by tbe court that the name is descriptive either of an individual or of an association. This is tbe result of tbe decisions. In Union Fire-Insurance Company v. Osgood, 1 Duer 707, however, it was held that, where tbe plaintiffs sue in a name appropriate to a corporate body, it is not necessary to allege that they are a corporation. The decision leaves it uncertain what is a name appropriate to a corporate body, partnerships being at liberty to adopt any name they please. But in State v. Mead, 27 Vt. 722, it was held that “the Vermont Central Bailroad Company” did not, ex vi termini, import that they must he a corporation under the laws of Vermont or of any State, and the court, unless it is so alleged, cannot take judicial notice that such is the fact. The allegation would be sustained by proof that the railroad company was a voluntary association. The intendment is against the pleader. And -with this agree the eases of State v. Central Railroad Company, 28 Vt. 584; State v. Same, 28 Vt. 583; Central Manufacturing Company v. Hartshorn, 3 Conn. 190; Camden, &c., v. Romer, 4 Barb. 127; Bank v. Simonton, 2 Tex. 531, 11 U. S. D. 106.

It is clear that a voluntary association has no right to sue in its partnership name, but the action must be brought in the names of the individuals who compose the association, or some of them. ~Welf. Eq. PI. 56; Story Eq. PL 386 ; 1 Dan. Ch. Pr. 29, 30. And in such ease we think a demurrer well lies on account of the defective description of the party. Story Eq. Pl. 26 ; 4 Barb. 127.

The effect of a demurrer for such a cause is not a dis-mission of the bill. The party has leave to amend, and it is only in those cases where he cannot or will not amend, that the bill is dismissed. 1 Dan. Ch. Pr. 30.

The second cause of demurrer assigned seems to us entirely without foundation. The privilege and mills of the plaintiff, and the dam threatened to be torn down and demolished, are alleged to be at Eolsom’s Ealls, in the towns of Laconia and G-ilford, in the county of Belknap. The courts ex officio take notice of the principal civil divisions of the State. The county of Belknap, and all the counties in the State, are judicially noticed as counties within the State, and the same rule is held in England and elsewhere. Lake Company v. Worster, 29 N. H. 443.

Towns here are, and immemorially have been, created and incorporated by public statutes ; and they are at least once in four years i’ecognized by public statutes as towns, situate in particular counties, and as towns composing part of the State, and have been recognized from time to time by public laws, as towns composing pai’ts of senatorial and councillor districts, and of the military divisions of the State. And we think it cannot be doubted that courts are as much bound to take judicial notice of our towns as they are of our counties, and for the same reason, that they are constituted towns and parts of the counties by public laws, of which the courts are bound to take notice. In King v. Journeymen Tailors, 8 Mod. 11, it was held that Cambridge, being mentioned in several acts of Parliament, the court must take notice of such acts, and intend that Cambridge is in the county of Cambridge ; and the like was held in Withers v. Warner, before cited, and in People v. Breese, 7 Cow. 429.

Public statutes, says Chitty (1 PI. 218), and the facts they ascertain, must be noticed by the courts without their being stated in pleading. 1 PI. Com. 85 ; 3 Shars. PI. Com. 293, n. 1. The division of England into counties will also be noticed by the court ex officio, but not that of particular liberties, which must be stated in pleading. So the court will take judicial notice of what towns are incorporated, and of the extent of ports, and of the river Thames.

The court here takes official notice of the towns in the several counties, by sending to them venires for jurors, &c.

We recollect of no decision that the courts are ex officio to notice the great lakes, rivers and mountains of the State,, as parts of it, and as lying within its limits, but it can hardly be doubted that courts would notice, of course, the great geographical features of the State. That the Winnipiseogee lake and river are in New-Hampshire, it would seem every court must observe without proof. But if there could be any doubt of it, it seems set at rest by the statute of June 29, 1841, in addition to the act to constitute the counties of Belknap and Carroll, which provides that the boundary line between the counties of Belknap and Carroll shall begin at the easterly termination of the line dividing the towns of Meredith and Moultonborough ; thence running easterly to the southerly point of Long Island, in Winnipiseogee Lake; thence easterly to the southerly point of Parker’s Island; thence easterly to the westerly termination of the line dividing the towns of Wolf borough and Alton, and all the lands and waters lying northerly of said line, and between that and the towns of Moultonborough, Tuftonborough and Wolf borough, shall constitute part of said county of Carroll ; and all the lands and waters lying southerly of said line, and between that and the towns of Meredith, Gilford and Alton, shall constitute a part of said county of Belknap. The towns named in this bill — Laconia, Gilford, Tuftonborough, Wolf borough and Alton — are made parts of Belknap and Can’oll counties in express terms, by the act constituting those counties.

It is insisted that the bill does not allege that the complainants had been in the uninterrupted use and enjoyment of any right to flow the defendants’ lands, for twenty-years previous to the filing of the bill, or prior to the acts complained of; nor that the use and enjoyment, such as it was, had been adverse. The question here is not whether the plaintiffs show a good title as against these defendants, with reference to any lands owned by them, but whether they show a good primá fade title in themselves, as against wrong-doers — persons who, so far as appears by the bill, are not the owners of any property, either injured or liable to be injured by the effects of the plaintiff’s dam. At common law, possession is a good title against a wrong-cloer. The party who shows that he is in the actual enjoyment of an easement, under a claim of right, is entitled to be protected in that enjoyment against those who have no adverse and inconsistent right.

In actions for trespass or ouster of the land itself, it is enough to allege that a party is seized or possessed of the property, and if that fact is admitted by a demurrer, it constitutes a perfect title. The same principle, of course, governs in the ease of easements, but the different nature of easements renders it necessary to vary to some extent the form of the allegations, the purpose being still the same — to allege that the party is in possession of the easement. Palmer v. Keblethwaite, Show. 64; Jackson v. Savage, 2 Ld. Kaym. 1568; Brown v. Best, 1 Wils. 174.

An easement can be acquired at common law only by grant, or prescription which pre-supposes a grant. It is, therefore, necessary for a party who assumes to describe his title, to state it as derived in one of these modes; though it is held sufficient to allege that he is lawfully possessed of certain mills, and by reason thereof ought to have the benefit of the water of a certain stream, which, of right, ought to have run and flowed to the same; 2 Ch. Pl. 337, &c.; Prec. Dec. 196, &c.; Angelí on Watercourses 446; Anon. Cro. Car. 499; Glyn v. Nichols, Comb. 43; because, no doubt, in many cases the right to water is an incident to the land itself, rather than an easement.

The same principles, we apprehend, must govern in a bill in equity. The party who seeks relief from an injury to his property need do no more than allege that he is seized or in possession of it, against any one whom he charges as a wrong-doer. If he alleges an injury to an easement or privilege in the land of another, which is prima facie against common right, he should ordinarily state the possession of the easement under some title by which it might be acquired, as by grant or prescription, except in the case of water, before referred to.

At common law, prescription must be alleged from time whereof the memory of man runneth not to the contrary, but it has been held here, in accordance with the general current of decisions in this country, that an adverse and uninterrupted enjoyment for twenty years of an incorporeal hereditament, affords a conclusive presumption of a grant, or a right, as the case may be, which is to be applied as a presumpiio juris et de jure, whenever by possibility a right can be acquired in any manner known to the law. In order, however, that the enjoyment of an easement in another’s land may be conclusive of the right, it must have been adverse, that is, under a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted; and the burden of proving these facts is on the party claiming the easement. Wallace v. Fletcher, 30 N. H. 448.

So far, then, as the plaintiffs’ bill in this case is to be regarded as brought for the protection of their easement in the right of raising and keeping up the water of the ‘Winnipiseogee river and lake, and the smaller lake, called the Long Bay, it is necessary that they should allege a title to the right they claim, by grant or prescription, or both.

For the protection of their dam alone, it would be sufficient to allege their possession alone. It would seem that the plaintiffs, regarding the question of the dam as important chiefly as the means of preserving their easement and right of keeping up and controlling the water, have preferred to put forward the easement as the main question of the case.

Have they, then, stated a title by grant or prescription, such as is required here, sufficient to justify the relief they ask ?

They state their case differently as to the lake, and the bay or pond below. They allege that they have deepened the l’iver, or channel, from the bay to the lake, and that the water of the lake stands at a lower level, and as low as it would stand if there had been no excavation and there was no dam at Folsom’s Falls; that is, they deny that their dam raises the water of the lake above its natural condition.

In the next place, they allege that they acquired the right to flow the lake from the owners of the outlet; but as they do not assert that those owners had such right themselves, by grant or prescription, this averment may be regarded as of no importance.

They state that Batchelder and Lyford, who then owned the privilege at Folsom’s Falls, in 1829 erected a new dam, higher than any former dam at that place, but not so high as the dam at the outlet of the lake, and completed it October 20, and filled it November 24, 1829, and this dam, ever since the erection of it, has been used, occupied and enjoyed in the same manner as it is now used and enjoyed. The plaintiffs, and those under whom they claim, have for all that time claimed and exercised the right of keeping up the water of said river, by said dam, as high as it is now held and retained thereby, except in low water and in case of accidents, and during all that time no owner of land, now claimed by the defendants, or either of them, has instituted proceedings against the owners of the dam, or complained thereof.

On examining these allegations, they seem to us entirely within the rule, as it regards both the lake and the long bay. They have kept the water up by their dam as it now is, nearly thirty years, claiming the right to do so. This allegation, that they claimed the right to raise the water, is equivalent to alleging an adverse possession.

As it regards the waters of Long Bay, they admit they raise the water, but they assert that they have purchased the right to do so of all whose lands they know to have been flowed. This is a sufficient title by grant primd fade, and if the defendants have not sold, and have lands flowed, it is for them by their answer to show it. Having raised the dam and bought the right to flow, they have flowed for nearly thirty years, claiming the right to do so. Till something more appears this is a good title to maintain the bill.

It is objected that the plaintiffs do not allege a purchase of all the owners of the land flowed. They say nearly all. It is said this admits there were some of whom they did not purchase the right, and the owners of the lands the defendants claim may be among these. If this were so, the allegation that they have kept up the water more than twenty years under a claim of right, is, prima fade, sufficient.

It is objected that the allegations of the bill, as to the height of the water, refer, not to the time of the acts complained of, but to now — the time of filing the bill; but this is no ground of demurrer. If they limit their claim to the state of the water at the time of filing their bill, they will get their relief confined to that state of things; and if, in point of fact, the water was higher at the time of the acts complained ofj and that would furnish in part or wholly a justification for what was then done and said, that is a matter of defence, to be shown by the answer. Nothing of that kind can be assumed. The bill says the dam was always used as it now is.

It is said the water was kept up, as alleged, by license of the owners of the land; but we cannot assume that against the allegations of the bill, which state no such license, but on the contrary state they kept up the water, claiming the right to do it.

It is again objected that it is not alleged that the water was ever as high as it was when the defendants attempted to remove the dam. The plaintiffs do not put their present claim on the condition of things, as it regards the dam and water on the day the defendants attempted to take it down, but on the state of facts existing at the date of the bill. If there is a difference, and that difference is shown by the pleadings and the evidence, the defendants must have the benefit of it on the hearing.

It is said the bill does not allege any certain height at which the water was kept up at any time. It is not, perhaps, necessary to state such a fact. The water may be liable to great fluctuations, and if in substance it is alleged that it was kept up as high as their dam would raise-it, when there was water, its being drawn by the plaintiffs for their own purposes would not prevent their acquiring a right to the extent of their claim. There is an easement of drawing water from a well. In the nature of things there cannot ordinarily be any continuous use of such an easement; but if it appeared that a party had claimed the right of drawing water at all times, at his pleasure, and had exercised the right of drawing, as he had occasion, for twenty years, that would establish his right. What, on Easements 11; 2 Bouv. Inst. 174, 183.

Bights of way, and some other easements, are not continuously exercised; but the right is acquired by an uninterrupted use of the right at all times, at the pleasure or convenience of the party claiming the right.

On the same principle, if the plaintiffs claimed the right to keep the water in their dam at its full height, whenever they chose, and had water to fill it, and exercised that right for twenty years, agreeably to their claim, it would be conclusive that they possessed the right.

The court cannot, without proof, pronounce that the state of the dam and of the water set up in the bill — their condition on the day of filing this bill — is not such a state of things as admits of certain and definite proof. The height of the water may be as certain, and as certainly known on that day, as if it was stated in feet and inches from a bench mark.

On motion, leave was granted to amend the hill.