Shumway v. Simons , 1 Vt. 53 ( 1827 )

Royce, J.

delivered the opinion of the court. — It seems to have been submitted to the jury in this case to find from the evidence, whether, for fifteen years before the commencement of the action, the plaintiff’s land had been overflowed, by the means complained of in the declaration, to the same extent as for the period since the erection of the defendant’s present dam; and also whether the overflowing of the land had been continued for any period of fifteen years, without interruption. Their verdict must be taken to have settled both these questions in the negative.As an answer to the first part of this finding,the defendant relies upon the fact asserted at the trial, that his present dam is not higher than any one which preceeded it; and to the second, that the interruptions to the exercise of the right claimed were not of such a character as would prevent a consummation of the right. Admitting the first assertion to be true, we have then to account for the increased detriment to the plaintiff’s land, which could only result from a better construction of the present dam; thereby causing a more complete obstruction of the water. In principle, it must be equal in all respects, whether an inconvenience is suffered from a more perfect refiting of an ancient dam, or from an obstruction wholly new; yet in practice it is easy to perceive that such a rule of decision is exposed to much -embarrassment in its application. If the dam remains of the accustomed and proper height, the additional injury produced by rendering it more compact and impervious to ¡the water, should be permanent, manifest and ¡indisputable.. And ’if, as the plaintiff under-took to prove -on trial, the land in question was for many years 0Cr cupiéd as a meadow or pasture,'but ever-since the building of the present dam -had been so -flooded that the grass had-ceased'to grow -upon it, this is .a case .of that decisive character for -which' a remedy may be had by action. .

Clark, for plaintiff. Langdon, for defendant.

Upon the -other -point., die court would now -confirm the suggestion-of the judgemade at the trial, that the modern doctrine of presumption is founded .in analogy to the statute of limitations.-^It is applicable -to cases .for which .the statute has not provided.— And the evidence-in .support-of a presumptive right, must at least be sufficient to have .established-the legal right, provided the statute had extended to the case in judgment. That the interruptions shown in .this .case would prevent the acquisition ,of a tille under the statute can admit of no .doubt. They furnish evidence of a kind of alternate occupation by these parties of the property in question; and this for many obvious reasons .could never satisfy the statute. The argument for-the defendant seems ,to amount to -.this; — that the .plaintiff must have known the .right was claimed and would ¡fee persisted in, and having omitted for such a length .of time to make resistance or bring an action, he ,is now concluded to deny .the right, .nothwithstanding its exerpise may .have .been often .interrupted or ¡suspended by other persons. If during the seasons of-interruption, the .plaintiff in submission to an .alleged right of ¡the defendant, had fprborne to enjoy-the land, .there jnight be weight in this argument; hut as the fact was otherwise;, .the doctrine held at the trial must be supported, .Judgment is .therefore -entered on fthe verdict.