Ford v. Whitlock ( 1855 )

The opinion of the court was delivered by

Redfield, Ch. J.

I. There can be no manner of doubt whatever of the right of the owner of land, through which a stream runs to change the course of the stream, on his own land, to any extent, if he does not thereby diminish, in any material degree, the beneficial use to other proprietors, either above or below. And in so doing he requires no consent of such other proprietors, and has the same right to continue this change from the first as after the lapse of fifteen years. And he may in such ease Restore the stream to its former channel at any time, even after the lapse of fifteen years. Norton v. Volentine, 14 Vt. 239.

II. But where such diversion affects those above or below unfavorably, it requires fifteen years to give the right to continue the stream in the new channel. But if the diversion affects other proprietors favorably, and the party on whose land the diversion is made acquiesces in the stream running in the new channel, for so long a time that new rights may be presumed to have accrued, or have in fact accrued, hi faith of the new state of the stream, the party is bound by such acquiescence, and cannot return the stream to its former channel. This is the very point decided in Woodbury v. Short, 17 Vt. 387. The only appreciable difference between that case and the present is, that there the change in the bed of the stream was made by a freshet, and here by the act of defendant, which makes the case stronger against the defendant. We have no occasion to discuss the principle of that decision. It seems to us analogous to the rules of law, which have been applied to dedications to public use of land, or the use of land; and it seems to be highly equitable and just, that where one has by his own act, either originally changed the course of a stream, or suffered it to remain in a channel, cut by some sudden convulsion, until others have expended money in erections, as in the present case, in faith of the stream running in the new channel, or as in the case of Woodbury v. Short, may be supposed to have done so, that the stream should not then be allowed to be restored to its former channel to the detriment of other riparian proprietors.

There may be a remote analogy between this case and that of a license in fact, which is not regarded as irrevocable at law, until after an acquiescence of fifteen years, or more. But the law as to funning streams is also analogous to public rights like highways and commons, inasmuch as a large number of persons have an interest in fresh water streams and they are therefore quasi of public concern, and the rules of public dedications have been applied to an acquiescence in a new bed for such stream, and one who cuts such bed on his own land and thereby renders the use of the stream beneficial to other proprietors, in a different mode, is bound to the same extent and in as short a period, as if he alters the fence upon a'highway or common, and thereby gives privileges to the public.^ ' He cannot often recall them after the shortest term. Any term is ■_ sufficient, which satisfies the jury, that the public were justified, in treating it as a permanent dedication. And here the seems to have been all in one direction on that question, and therefore there was no necessity of submitting it to the jury.

Judgment affirmed.