Bucklin v. Truell , 54 N.H. 122 ( 1873 )

Sargent, C. J.

The case finds that the dfefendants owned a tract of land, with a saw-mill, mill privilege, and dam thereon, at the outlet of Grafton pond, upon the northern shore thereof; that said dam was built in 1818, and has remained unchanged ever since; and that during all the time from 1818 until the time of trial the defendants and their grantors, the owners of the mill for the time being, have been accustomed to use the water in the spring to saw with as they had occasion while the water was plenty, and so until the waters of the springtime had subsided ; and in summer it had been usual for them to shut the gates, and hold all the water in the pond for occasional use until the fall rains made the water abundant; and that in no case had the gate of the dam been hoisted during any summer season with any view to drain these meadow lands upon the shore of the pond.

The right exercised by these defendants there since 1818, a period of fifty-five years, has been to keep a dam of a fixed and uniform height, and, except in seasons of high water, when it fills and overflows their dam, to hold all the water there was in the pond and all that ran into it, and use it at their own convenience when they had occasion to use it at all, and during the summer season to keep their gates shut and hold back all the water that came into the pond from all sources, using it as they had occasion until the rains of the autumn. They thus held all the water of this pond through the summer and through the other seasons of the year as they pleased, to the extent of the height of their dam. In seasons of high water, or in very wet seasons, so that it overflowed the dam, they must let it run over without obstruction; they could not raise their dam to make it hold more water, and so, when the water was low and in dry seasons, they controlled all there was, whether much or little, up to the level of their dam. That the water might be much lower some years than others would not affect the defendants’ right, or prevent their holding all there was in a wet season until their dam was full.

Such was the use that was long made of the water of this pond in 1850, when the three Gages sold to Williams this mill and privilege and dam, “ with all the privileges and appurtenances thereto belonging,” conveying the right to continue to make the same use of it in the future as had been made in the past. Such was also the use that was being made of the water, the gates, and the dam when Roswell Gage conveyed to this plaintiff in 1859 this meadow, “ reserving every legal right of flowage.”

If a dam be not used to turn the waters to the use of a mill at all, the height of the dam would be no criterion of the right to use it; but twenty years’ use of the water of a stream or a pond in a particular way is evidence of a right to use it in the same way, and the use of a dam in a particular way for twenty years is evidence of a right thus to use it. Burnham v. Kempton, 44 N. H. 78. Here the right established by the use would seem to be, to use all the water that came into this pond, from streams or springs or rains or any other source during the year, as they please, with the right to control the same without limit except the height of their dam. Both pieces of land of the plaintiff have been made, as the case finds, substantially, by the defendants and their grantors lowering the outlet of the pond; but, while they have thus lowered the outlet so that they can draw down the water lower than before, they have not lowered their dam or kept their gates shut or open in any manner different from what they did before.

The defendants and their grantors have not relaxed or yielded any right or claim, or lost any, by non-user. For fifty years and more they have exercised the right without interruption of using the water as they chose, and controlling it, and keeping back all there was through the summer season, whether more or less, as they pleased, — their right to use and to control it being only limited by the height of their dam. The defendants were in the exercise of these rights only at the time of which the plaintiff complains, and though the water may havé been higher that season than in other years, yet that does not change or affect the rights of the parties. There must be

Judgment on the verdict.