Olney v. Fenner

Greene, C. J.

charged the Jury.

Water is a subtle element, and this case is but one instance of the many difficult and complex questions which grow out of the conflicting claims of its owners. The plaintiff claims by several counts, as the owner of land on Wood river, running by deed to the centre thereof, damages for the diversion of the water. Ordinarily the owner of land, bounding on the banks of a river, owns to the centre of the channel, and may claim as riparian proprietor to have the river flow by his land unobstructed and undiverted in its natural course, and without any material diminution. And even though he makes no use of the water, no one has a right to disturb its natural flow. He has the right to build a dam to the centre of the river and to use his proportion of the water for mill or other purposes, and the opposite owner has the same right on his side. If the same proprietor owns both banks, he has a right to the use of the whole of the water. These are common law rights, and if in this case there has been a wrongful diversion, the plain tiff as owner of one bank of the river, is entitled to damages.

The defendants contend that there has been no diversion since the building of the ancient dam. This is a question for you to determine. If there is as much water on the Hopkinton side and on the Richmond side as used to run there, the plaintiff has no ground for complaint, but if more water is drawn through the flume than used to run over the rolling way, so as to make an increased diversion, then arises the question whether the water so diverted is returned in such a way that it would run past the plaintiff’s land and give him the benefit of it. And this also is a question for you to decide.

The defendants are responsible for their own acts but not for those of others, neither for the erection of the dam nor the filling in of the river. If you think the water was diverted in consequence of the erection of the dam and the filling in with stones, the defendant is not answerable ; but if, notwithstanding the removal of the dam and the stones, the river would not return to its natural course, then the plaintiff has been injured. If the whole river were previously discharged on the Hopkin-ton side, still the plaintiff could have a right to the use of no more than one half, and if it would now run by his land but for these obstructions he has no ground for complaint, unless its natural impetus has been impaired by the diversion.

But the defendants likewise contend that the Teft mill is entitled to a prior use of the water, and that the plaintiff is not entitled to one- half of the water, but only to a waste water privilege after its use by the Teft mill. The plaintiff stands on his own title and must prove it. If it be true that he is entitled to only the waste water of the Teft mill and he gets that now, this is a valid defence. The plaintiff says, indeed, that the right of the Teft mill is no defence for the defendants’ act. But this is a mistake. The plaintiff must show a right to the use of the water before he can complain of its diversion. Otherwise, if the plaintiff should recover for the diversion and the defendant should return the water into its original channel, this would be no bar to a suit by the proprietors of the Teft mill for changing the course of the water, and so the defendant might be mulcted in damages both ways. The plaintiff must show a title in himself, but the defendants may show a title in a third party.

The title set up for the Teft mill, is a title by twenty years user. To give this right, the use must be open, continuous and uninterrupted. It is immaterial whether the owner below has any need of the water or not. The lower owner has a right to the flow of the whole stream, whether he needs it or not, and a diversion for twenty years confers just as much right against the lower owner, who has no use for it, as against one who needs it all the time for mill purposes. The Teft dam was built in 1812, and in 1822 the right was purchased to continue it to the opposite bank of the stream. This purchase conferred no right to divert the water, and the claim is not of a right by purchase, but an enjoyment of the use of the water by this dam in its present condition for twenty years. On the other side, it is said that the water used by the forge was, until 1834, discharged below the dam. That is for you to determine, and also how much if any deduction is to be made from the present use of the water by the Teft dam, or the defendants, on that account. If the possessory right of the Teft dam is proved, and the plaintiff is only entitled to the waste water, he has no claim for damages; if it is not proved, or if he receiyes less now than for the twenty years during which this right was acquired, he has a right to damages for the diversion.

But there is still another defence. In 1844, Pardon Olney, the plaintiff, and John Olney were tenants in common of the mill owned by the defendants. In this year the plaintiff conveyed to John Olney his undivided moiety in said mill estate, together with “ all the privileges and appurtenances thereto belonging or in anywise appertaining to the same.” Now Ave think, the plaintiff having sold the property as it Avas in 1844, and received the purchase money, that it is not competent for him, upon purchasing land below, to claim damages fop diversion, however proper such a claim might have been in his vendor, so long as the Avater remained as it Avas at the time he sold the mill. If he had owned the land below at the time of the sale, he could not claim the natural flow of the water, because the right to use it in the mode in which it was then used Avould have passed by the s.ale, and the land coming to his possession subsequently gives him no right which he would not then have had. This is an estoppel in pais, that is, the plaintiff is estopped by his representations from making any claim which shall be inconsistent with them against the person who has expended labor or money upon the faith of such representations. If, therefore, the water is used now as it was in 1844, the estoppel is a bar to the plaintiff's suit, but it will not cover any change which has been made subsequent to that time.

Verdict for the defendants.