Townsend v. McDonald , 1852 N.Y. App. Div. LEXIS 140 ( 1852 )

By the Court, Parker, J.

At the time Aikin, Goodman and Dickinson released and conveyed to each other pursuant to the partition made between them, they covenanted that each party should pay his just proportion of the expense of erecting and maintaining the dam, and that neither party should so use the water as to deprive any other party of a just and reasonable participation in its use for mills, machinery, &c. I do not see that this agreement as to using the water, changed the legal rights of the parties. The parties having contributed jointly to the erection of the dam, and having changed the course of the creek, in part at least, by conducting it in a race-way across their lots, the law would secure to each the right to a just and reasonable participation in the use of the water. That right in the owner of each lot was to raise the water by a bulkhead or by machinery or otherwise, as high as the line of property on the stream; not as high as the line of property on the bank. In this respect the race-way was to be treated as a natural stream. Each owner might use the water as it passed over his lot, but not in a way, or to the extent, that would throw it back upon his neighbor above.

[Albany General Term, December 6, 1852.

Parker, Wright and Harris, Justices.]

The rights of the parties were also liable to be changed, in the same way and under the same circumstances, as in regard to a natural stream. A continued use of the water, by flowing it back upon the lot above, or detracting from the value of its use below, for more than twenty years, would ripen into a legal right, and a grant would be presumed. (3 Kent's Com. 440, 447. Stiles v. Hooker, 7 Cowen, 266. Belknap v. Trimble, 3 Paige, 577. Angelí on Water Courses, § 205.) This rule of law would be equally applicable, whether the rights were originally defined by agreement of the parties, or limited by operation of law. In either case, as the rights might be changed by grant, they will be held to be changed whenever a grant will be presumed.

The application of these principles to the facts before us makes this case a very plain one. The plaintiffs had enjoyed the uninterrupted use of the race-way to a certain extent and in a certain manner, for more than twenty years. A right was thus established, with which the defendant cannot be permitted to interfere: and whatever may have been the original rights of the parties, the erection by the defendant of the bulkhead a.nd other obstructions was an illegal interference with the right of the plaintiffs, so established by prescription.

The referee was therefore right in his decision, and the judgment entered thereon must be affirmed with costs.