Dyer v. Depui , 1840 Pa. LEXIS 255 ( 1840 )

The opinion of the Court was delivered by

Sergeant, J.

This was an action on the case brought by Moses Depui against Joseph Dyer., for pulling down and destroying a dam, which had been erected by the plaintiff on the land of the defendant, for the purpose of turning upon the plaintiff’s land, a stream of water which naturally flowed in another direction. The plaintiff claimed the right to erect the dam, and to cut a trench on his own land, and open one on the land of an intervening neighbour (Chap-pell,) so as to conduct the water thus diverted by means of the dam, to his farm and dwelling, there to use it for the various purposes of husbandry.

At and before the 22d of February, 1813, Joseph Dyer, sen., was the owner of a large tract of land, partly in Philadelphia and partly in Montgomery county. A dam had previously been erected on his land by which the water was diverted. On that day he conveyed to the plaintiff Moses Depui, forty-two acres sixty-one perches: “ together with the privilege of a part of the water flowing along a certain ditch or water course from John Hogeland’s land through and across the said Joseph Dyer’s other land, on condition that the said Moses Depui, his heirs or assigns, will at all times be subject to and defray one half the expenses of keeping or repairing the dam, and clearing out the said ditch or water-course,” “ to have and to hold the said tract or parcel of land above described, with the privilege of part of the water as aforesaid.”

On the 7th of February, 181-6, his will da’ted the 9th of January, 1813, was proved. He devises to Samuel Dyer a tract of land (since John Chappell’s,) lying between .the plaintiff’s land and the defendants, “together with a dam or water-course from John Hoge-land’s line through and across the lot of land hereinafter devised to my son Joseph Dyer, as the same now runs, with a privilege on each side of said drain or water-course, one perch in width, for passing and repassing to mend, repair and clean out said drain or water-course, as often as the same may be necessary, without any let or hindrance of him the said Joseph Dyer, his heirs or assigns, with the water drain and privilege aforesaid to him the said Samuel Dyer, and his heirs and assigns forever, from and after the 1st day of April, 1817, (till which time it was devised to testator’s widow,) and subject to the water drain now open and running through and across the first mentioned lot to Moses Depui’s line.”

He then devised to the defendant Joseph Dyer another portion of land adjoining, “ and subject to the aforementioned drain or watercourse from John Hogeland’s line through and across the first mentioned lot of land, with the privilege granted to my son Samuel Dyer, his heirs and assigns, of a passage or cart way one perch wide on each side of said drain, for clearing and repairing the same.”

Much parol evidence was given to show the times when the dam was built or renewed, its size and heighth, and the nature and extent of the drain or water-course, as well as the situation in which it had been for twenty years before the bringing of this suit; for all of which, I refer to the evidence and the charge of the Court: the latter supplying (by admission of counsel) some deficiencies in the former, occasioned by the loss of the original. notes of the judge who tried the cause.

The first and principal question raised by the defendant below is, what was the nature and extent of the right granted by Joseph Dyer, sen. to the plaintiff by the deed of the 22d of February, 1813. The defendant contends, that it conveyed to him no more than a right to use the water exactly as it then was; and he alleges that the dam then extended only to within a hundred and fifty yards of the plaintiff’s line: and that he therefore had no right to go upon Chappell’s land and cut a drain up to his line and beyond it through his land. On this point however, the evidence is by no means clear. Some of the witnesses speak of the trench as running up to the plaintiff’s line: and the words of the will of Joseph Dyer, sen. under which the defendant claims, expressly describe it as running through and across the first mentioned lot to Moses Depui’s line. The defendant further says that this grant is no more than the privilege of watering cattle, which the plaintiff could exercise by driving them into the ground now Chappell’s; but the grant is not restricted to the watering of cattle. It is a general privilege of a part of the water; and as there is no limit of restriction placed upon it, it must be construed most beneficially for the grantee, especially as he is subject to the onerous burthen of paying one half the expense of keeping up the dam and cleaning out the drain. Water is useful and necessary to a farm for various purposes, besides merely watering cattle; and we think it was a right to use a portion of the water in the way it is customary and necessary to use it for the benefit of the land conveyed. If to do so it was necessary to conduct it on and along the plaintiff’s farm by a trench, if that was the only way in which he could beneficially use the privilege, he might cut the trench and conduct the water, and might renew and repair the dam for the purpose. It is evident that the grantor and grantee thought it an important privilege; and the grantor has with scrupulous justice fortified and secured it by various clauses in his will, when he came to divide his land among his children, expressly making their devises subject to this privilege, and even giving to his son Samuel, (of whom Chappell bought,) the right of a perch in width on each side of the drain in the defendant’s land for passing and repassing to make the necessary repairs in the drain and cleaning it out. Afterwards in the devise to Joseph Dyer, the defendant, the testator makes his land subject to the drain and to the privilege of a passage for cleaning and repairing it. Under these grants and liabilities the defendant holds ; and they show the clear understanding and determination of the testator, that this drain was ta subsist and remain in perpetuum as a matter of importance to the enjoyment of the properties by the respective owners. For an abuse of the privilege, by which an injury would be sustained by any one person, such person has his remedy by action, or by exercising his summary power of abating the nuisance, in the manner however, and to the extent only which the law allows.

The next allegation of the defendant is, that the judge erred in declining to tell the jury that there was no evidence that the defendant assented to a change of the foundation of the dam. There is certainly something of that kind stated in the charge of the Court to have been relied upon by the plaintiff The judge says, “the plaintiff relies upon the acquiescence of the defendant in the change of place made by Samuel, to show that the defendant considered a slight variation of no importance; and also upon a declaration of, the defendant which he contends he has proved, that he knew the plaintiff had a right, but not to conduct the water as he did.” In .a case where the notes of the evidence have beeri mislaid, and it is admitted that the evidence which the judge states in his charge is to be taken as correctly stated, the plaintiff has a right to insist that there is here some evidence, however slight, and that the judge could not«truly say there was none.

Another point which has been strongly pressed is, that the judge erred in what he said as to the heighth of the dam, viz. that even if it was higher than the original dam, to the injury of the defendant, the latter had the right only to reduce it to its proper height, but not entirely to demolish it. But this doctrine is certainly that both of reason and authority. The party exercising the right to abate a nuisance, can only remove or take away so much as constitutes the nuisance. He cannot destroy other erections which are innocent and lawful, merely because they happen to be connected with the injurious part. The common law is conservative in its chaarcter, and does not authorise the wanton destruction of property. In Cooper v. Marshall, (1 Burr. 259,) it was decided that a commoner cannot destroy the lords’ conies and their burrows because they are in excess. You can, says Denison, J., at the utmost only abate so much of the thing as is a nuisance. You cannot destroy the whole, (which is the right here denied,) but only so much of the thing as makes it a nuisance. In Sir J. Strange, 688, in the case of Rex v. Papineau, Lord Chief Justice Raymond expressly declares so. Suppose a man builds his house so high as to be a nuisance to his neighbour by obstructing his lights, or in any other respect arising from its excess, you can’t destroy the whole house, but only so much of it as by its excess above what is allowable constitutes the nuisance. .

The defendant further contends that the plaintiff even though originally entitled had lost his right by non-user for twenty years; and assigns for error that the judge charged that the presumption to defeat such right does not arise from a non-user for a less period than twenty-one years.

In this position we think the Court below was right, and that the rule on the subject in Pennsylvania is founded in the analogy to o.ur act of limitations of 1785, in relation to lands, which fixes the period of twenty-one years; in the same manner as in England the rule is established by analogy to their statute of limitations of 21 Jac. 1, c. 16, relating to lands there. There are undoubtedly to be found scattered through our reports dicta of some of the judges of this Court at variance with this doctrine; but these expressions have been used in cases where the exact time is not material in the cause, and it was not therefore necessary to be precise in language.

Judgment affirmed.