author: Swift, Ch. J. Gourd, J.

text:
    Ingraham against Hutchinson.
    Though every person has, independent of grant or prescription a right to the use of water on his own land, in its natural course and quantity, and may sustain an action for its diversion or obstruction, to his prejudice; yet a special right, different from the general one, and paramount to the general rights of •ther owners of land on the same stream, may be acquired, by an exclusive enjoyment for fifteen years ; and to this end, it is not necessary, that such enjoyment sRoall Bive bsen adverse to the claims of those affected by it.
    THIS was an action on the case, wherein the plaintiff declared, that he is now, and for many years has been, the owner of a certain grist-mill, and saw-mill, on Blackledge river, in the town of Marlborough, of great value ; that for many years past, this stream has used to flow through a water-course near his said mills, whereby he has been enabled to work them, without interruption or molestation, to the great benefit of the public, and to his own profit and advantage ; that he has, and for many years past has had, the the right to use and improve the waters of said stream, in this manner, and for this purpose ; yet, that the defendant, on the 1st day of June, 1812, erected a dam across said stream, above the land and mills of the plaintiff, and then, and ever since, thereby hath obstructed and impeded the course of said stream, and hath prevented the water from coming to the plaintiff’s mills, whereby the plaintiff hath been deprived of his rights as aforesaid, and obstructed in the enjoyment of said stream of water.
    Another count stated, that the plaintiff, on the 1st day of June 1812, and long before, was, and ever since has been, lawfully possessed of a certain grist-mill, and saw-mill, and their ap-puricnanres, on Blackled ge river, in Marlborough, and of right, had, for more than thirty years, the use and benefit of said stream, for the purpose of working said milis $ yet the defendant, well knowing the same, on said 1st day of June, and on divers other days since, wrongfully and injuriously obstructed the waters of said stream, and prevented and hindered them from running and flowing in their ancient course, to the said mills of the plaintiff, and from supplying the same with water, for the working thereof, in so ample and beneficial a manner, as during all the time aforesaid it would and ought to have done, whereby the plaintiff hath lost much of the use, profit and advantage of his said mills.

      New-Haven,

    November, 1818.
    On the trial at Hartford, September term, 1818, before Swift, Ch. J. and Brainard and Chapman, Js. the plaintiff claimed, that he had proved the facts slated in his declaration. The defendant insisted, that he was not liable, because the dam alleged to have been erected by him, was above the plaintiff’s mills. But the court charged the jury, that when a man had made a dam across a stream, and had erected a mill, and used and occupied the same for more than fifteen years, he thereby acquired a right to the use of the water; and that no man had a right to erect a dam across the same stream, above such mill, so as to obstruct or divert the water from its natural course, in such manner as to injure the mill below. The jury found a verdict for the plaintiff; the defendant moved for a new trial, on the ground of a misdirection ; and the court reserved the motion.

      Sherman and Staples, in support of the motion,
    contended, that the exclusive enjoyment of water in a particular manner, for the period of twenty years in England, or of fifteen years in this state, establishes the right of such enjoyment in the party so enjoying it, in such cases only where the enjoyment has been adverse to the rights of others. The principle on which the right is established, is the presumption of a grant: and this presumption must arise from an usurpation on the one hand, and -an acquiescence on the other. If, during the whole period, one party has done only what he had a perfect right to do, and the other party has, of course, had no ground of complaint; no presumption can arise from the act of one, or the .-bearawe of the oilier. Actions have, indeed, been sustained, for diverting the course of a stream, and for oh

      structiiig the passage of the water ; but as ever# man, independent of occupation or prescription, has a right to the use of water on his own land, in its natural course and quantity, those actions would have been equally sustainable, with-°ut an hour’s enjoyment. On the other hand, parties have been protected in the enjoyment of water out of its natural course, and in an artificial manner, after enjoyment for the prescribed period 5 but in these cases, the rights of others had been invaded, and the enjoyment could not have gone on without their acquiescence. In Beaky v. Shaw, 6 East 208. the grievance stated was an invasion of the plaintiff’s natural rights. The defence set up was, that the defendants had enjoyed the water, in the manner complained of, for a sufficient period to establish a right in them to such enjoyment. It was admitted, on all hands, that the diversion of the water was adverse to the rights of other owners of lands on the river between the termini of the sluice. It was proved to the jury, that whether the defendants had, or had not, become entitled, by enjoyment for a sufficient period, to the use of a certain portion of the water, yet they had enjoyed the water to the extent complained of, for about 13 or 14 years only j and therefore, the jury, under the direction of Baron Graham, found a verdict for the plaintiff, which the court of King’s Bench refused to set aside. All the judges considered the enlargement of the sluice in 1791, as an invasion of the plaintiff’s rights. So in Sherwood v. Burr, 4 Day 244. the plaintiff’s natural rights were invaded. The grievance consisted in the defendants raising their dam, which was below the plaintiff’s, so as to throw back the water upon the plaintiff’s wheel, and stop its motion. The case was the same in principle as though the plaintiff’s meadow had been overflowed. Holcroft v. Heel, 1 Bos. ‡ Pull. 400. was an action for the disturbance of the plaintiff’s market. The defendant had invaded the plaintiff’s right; but as he had maintained an adverse possession for 23 years, it was properly decided, that the plaintiff could not recover. In Balston v. Bensted, 1 Campb. 463. the defendant had, by cutting a drain in a stone-quarry on his own ground, adjoining to the plaintiff’s close, diverted or obstructed seven eighths, or nine tenths of the water, so as to prevent its coming to the plaintiff’s usé ; an injury at all times actionable. Sackrider <$• al. v. Beers Sf at. 10 Johns. Rep. 241. asserted only the general principle, that a diversion of water from its natural course, to the damage of another, is a ground of action. Palmer <f al. v. Mulligan, 3 Cuines 307. Platt v. Johnson ⅜ al. 15 Johns. Rep. 213. arid Weston v. Mden, 8 Mass. Rep. 15C. decided only, that slight and unavoidable inconveniences, resulting to a parly from the use of water, by another, in a particular way, without diversion or material obstruction) were damna absque injuria, arid remediless. An exclusive right of fishery in a public river, is analogous to an exclusive right to the enjoyment of water beyond the bounds of one’s own land. Hut it lias been decided by this Court, that such right of fishery cannot, be gained by use and occupation in tlie mere lawful exercise of a common right for fifteen years. Chalkcr v. Dickinson, 1 Conn. Rep. 382. The Court, in that case, say, It has become an established rule of the common law, that easements may he acquired by uninterrupted possession for fifteen years ; such as rights of way, flowing another's land, diverting water-courses, fisheries, and the like. But in every case of this description, the use and possession, in the first, instance, are a usurpation of the rights of some other person ; and an action would always lie till the fifteen years were elapsed.”
    T. S. Williams am] IP. W. Ellsworth, contra,
    contended, that where two persons have equal rights respecting any subject matter, whereof the, actual enjoyment by one is incompatible, or cannot exist, with the actual enjoyment by the other, if one actually enjoys alone bis right, during fifteen years, or more, while the other lies by, and may, but does not, during that time, attempt to exercise, or actually enjoy, his right, the latter shall never do it afterwards, to the pre-juilice of the former. Many rights, in favour of one person, grow out of, or are essentially enlarged, or otherwise affected, by the non-user of another. This principle is the very foundation of the statute of limitations. Sedgwick, J. in giving the opinion of the court, in Dwight v. Clark, 7 Mass. Rep. 517. says, « I do not. think, that the legal presumption, in relation to a statute of limitations, is, that the debt lias been paid, if there be no evidence of its existence within tiie period of limitation ; but that the law, front considerations of public policy, has provided, that such debts shall not he rerovera-ble in courts of law : laying out of the question any consul-eralimi whether tlie debt bo, or be not, paid.” Tbe modern doctrines established by incontrovertible authority, requires, in order to take a case out of the statute, something more than a bare acknowledgment, that the debt; lias not been paid. 8 Johns. Hep. 407. 11 Johns. Rep. 146. 15 Johns. Rep. 511. 4 Jleiu, Selw. 457. A recovery upon bonds and legacies, not named in the English statute of limitations, after twenty years, is precluded, upon the principle of neglect, or non-user. An equity of redemption may be lost, upon the same principle. It is upon this principle, that it has, from time immemorial, been held, that where two have originally an equal right, one, by his sole enjoyment, gains an entire and exclusive right to the use of light, air or water, in tbe manner in which he has been suffered to enjoy it alone. A different doctrine would be ruinous.
    The application of the principle to light, is familiar, having been sanctioned by numerous decisions, ancient and modern. 2 Selw. JV. P. 1089. 2 Wms. Saund. 175. a. b. c. These decisions are never spoken of, as standing on any peculiar principle, or as constituting an exception to the general principles of the common law. They ought, therefore, to be regarded as sufficient for tbe present purpose. But there are several cases where the same doctrine is laid down in relation to water.

    It is, however, said, (and this is the only argument we have to contend with) that no right can be acquired in relation to the statute of limitations, by use or enjoyment, unless such use or enjoyment be adverse....a usurpation.... a wrong, immediately subjecting the party to an action ; and that all the cases proceed upon this principle. This is not true. It certainly is not, as to the class of cases respecting light. Nor is it, as to several of the cases respecting water ; as an examination of them will shew. In Sherwood v. Burr, 4 Bay 244. the defendant had originally a right to use the water, to the extent claimed by him. This is expressly stated by Judge Baldwin. But the court decided, that he had lost his right. They said, “ Although at first, by virtue of the grant to Joseph Perry, the dam might have been raised to its present height; yet, after a usage to the contrary, for so great a length of time, and after other water-works have been erected on the stream above, which must be lost and destroyed thereby, the right ought to be considered as
      lost by a non-user of it, and by an adverse possession inconsistent with such right.” Now, in this case, the plaintiff has acquired a right by use ; and yet the defendants could not have sued him, at the time the upper dam was built ;■ for the defendants, at that time, had water enough. When the plaintiff first built his mill and dam, he had a right so to do : the defendants might, at the same time, have raised their dam as much as they have since done. Both parties, at that time, might build ; and now, as one only did do it, and one only could enjoy the same right, or now can ; he that has built and enjoyed for fifteen years, shall continue to enjoy, while the other has lost his right by non-user. Where two cannot, at the same time, severally enjoy an equal right, one may gain a precedence, by long user. It can make no difference whether a person is to assert his right, by bringing an action at law, or by taking possession. If he docs not expect to lose his right, he must enjoy it, according to its nature : if he will do nothing, it is just that another should gain a sole and perfect right.
    In Balston v. Bensted, 1 Campb. 463. Lord Ellenborough expressly placed the plaintiff’s right upon twenty years* en-joym:nt; and yet his right or enjoyment did not begin by invasion or usurpation: there, never was a moment when the plaintiff could have been sued. The defence set up in that case, is exactly the one made here, via. that the plaintiff’s right did not commence wrongfully. But Lord Ellen-lorough observed, early in the trial, that twenty years’ exclusive (not wrongful) enjoyment of water, in a particular manner, completed the right so to enjoy it. In Bealey y. Shaw <§* al. 6 East 208. 215. Lord Ellenborough laid down the same unqualified principle.
    In Thurston v. Hancock ⅜ al. 12 Mass. Rep. 221. the principle in question seems to have been taken by the court as settled law. In that case, the plaintiff had, within ten years, built his house near the line of his lot; so that the defendant, by digging upon his land adjoining, undermined the plaintiff’s house, and it fell down, or was necessarily taken down. It is apparent from the remarks of the court, that if the plaintiff’s house had been built twenty years, they would have decided, that the defendant could not lawfully digin his land, so as to injure the plaintiff’s (muse.

      But it is said, that in Chalker v. Dickinson, 1 Conn. Rep, 382. the court decide, that in order to acquire a right to an easement, by fifteen years’ possession, the possession must have been, in the first instance, a usurpation. But do the Court sai, that where two persons have equal rights, which one only can enjoy, and one actually enjoys his right, expending his property in buildings, &c. while the other lies by, and sees it, but does nothing himself, the latter can, after fifteen years, eSme forward and assert his original right, to the ruin of the former? Now, the great difference between Chalker v. Dickinson, and this case, is, that in that rase, the rights and enjoyment of both parties, at the same time, were consistent: in this case, the enjoyment by one, so far as it is an injury to the other, is inconsistent with the other’s enjoyment j it is necessarily exclusive. In one case, the possession was uninterrupted ; in the other, exclusive. An uninterrupted enjoyment of a public fishery, by one citizen, is neither exclusive of, nor prejudicial to, the actual enjoy, inent of the same by another citizen ; and the error on the trial of Chalker v. Dickinson, was, that the. court charged the jury, that an uninterrupted possession of a common right, was an exclusive possession. In this case, it must be conceded, that the possession or enjoyment, by the plaintiff, for fifteen years before the commencement of this suit, so far as he now claims possession or enjoyment, has been exclusive. The enjoyment by one, could not exist, at the same time, with the enjoyment by the other. If Ingra-ham has possessed and enjoyed an undisturbed flow of water to his mill, during the whole of fifteen years past, as is found, then Hutchinson has not, during any part of that time, enjoyed the interruption of the same. Indeed, the very existence of this suit, proves, that the enjoyment of the water, by both parties, cannot exist at the same, time j and that so far as there is any interference, the enjoyment hv one must be exclusive.
   Swift, Ch. J.

By the common law, every person owning lands on the banks of rivers, has a right to the use of the water in its natural stream, without diminution or alteration ; tli«1 is, he has a right that it should flow, ubi currere snlrbut; and if any person on the river above him, interrupts,, or diverts, the romse of the water, to las prejudice, action will lie. Tliis-will give to every one all the advantage lie can derive from the water, whirl) does not injure the proprietor of lands on the river below him.a■''Hut a special right, different from the general one, may be acquired by an adjoining proprietor, by grant, or by such lengtfi of time as w ill furnish presumptive evidence of a grant. In England, it has been derided, that twenty years exclusive enjoyment of water in a particular manner, affords a conclusive presumption of a right in the party enjoying it, derived from some individual having the power to make it, or from the legislature ; and in this state, fifteen years exclusive enjoyment will furnish the same evidence. Such exclusive right, however, must, be measured and limited by the extent of its enjoyment, and the occupier can no more enlarge it than he can assume a new right. These principles are fully settled in the case of Brown v. Best, 1 Wils. 174. and Bealey v. Shaw, 6 East, 208. A different doctrine has been holden in this state. Perkins v. Dow, 1 Root 535. 537. It has been decided, that the proprietors on the stream above might take any advantage of the water, provided they did not deprive the proprietor below of the necessary use for his kitchen and cattle. In the case of Howard v. Mason, 1 Root 537. it was decided, that a man may divert a stream of water to manure and enrich his meadow, to the prejudice of a mill that had been erected on the stream below, more than twenty years. This is reversing the common law ; and not only gives to the upper proprietors on rivers, the advantages to which the lower are entitled, but denies that even seventy years exclusive enjoyment of w ater in a particular manner, will confer an absolute right. This last doctrine was over-ruled by the case of Sherwood v. Burr & al. 4 Day 244. The plaintiff had erected a mill more than forty years ago, which had ever since been in Constant use. The defendants had erected a mill below, on the same stream, more than eighty years ago, but w ithin ten years liad raised their dam so as to How the water back on the wheel of the plaintiff’s mill, and prevent its being used. It was decided, that the plaintiff, by his exclusive enjoyment, for more than fifteen years, had obtained an absolute right to the use of the stream for his mill : and that the defendants had no right to raise their dam to his prejudice. This decision will Hearlv warrant the principle laid down at the circuit, in this case, that when a man has erected a mill and dam on a river, and has occupied it, without interruption, for more than fifteen years, he acquires an exclusive right, and no one may erect a dam on the same river, above or below such mill, in such manner as to diveri or obstruct the water, to the injury of such mill.

It is, however, contended, by the counsel for the defendant, that to gain such exclusive right by possession, it must be adverse to the claim of the person to be affected by it, so thai he could maintain a suit; otherwise, there is no acquiescence ; and that, in this case, there was no such adverse possession. But the rule is laid down without such qualification ; the exclusive enjoyment alone is sufficient to create the right. In the case of Sherwood v. Burr & al. the defendants could never have maintained an action ; for the dam of the plaintiff was no injury to them : yet the court held the possession to be sufficient to gain an absolute right.

In this opinion, Trumburl, Edmond, Smjth, Brainabd, Hosmer and Chapman, Js. concurred ; the two latter,-solely on the authority of Sherwood v. Burr & al.

Gourd, J.

As at present advised, I think, that the jurj were misdirected, and that there ought to be a new trial. If there were other members of the court entertaining doubts upon the question, I should be desirous of further time for deliberation ; but as the opinions of my brethren are settled, I should not wish to delay the decision, for the mere purpose of maturing my own.

As easements, and incorporeal interests, are not within the statute of limitations; courts of justice have virtually extended the benefit of that statute, to those who have been long in the exercise, or enjoyment, of such rights, or interests, by the application of the doctrine of presumption : a doctrine, founded in sound policy, and of great practical convenience. And though the principle of quieting long possession lies at the foundation of this doctrine ; it must, still, have some limit, and be governed by some definite principle. It has, therefore, been framed, and wisely framed, in strict analogy to the statute of limitations, or, as is sometimes expressed, in imitation of that statute. And according to my present view of tho subject, a presumption from lapse of time, cannot, on principle, be conclusive upon incorporeal rights, except in circumstances, in which the statute would bar the possessory title to corporeal hemliia-menta. But the statute never operates, as a bar to a right, once existing, except where one is wrongfully muled of his possession, and voluntarily acquiesces its the wrong, for twenty years, under the English statute, or iifteen, under ours, iri other words, there must have been a usurpation of right, by one party, to the injury of the other, and for which the latter might have maintained an action, before the expiration of the term, prescribed in the statute ; or the original right is not barred. Hence, though the ouster of a particular tenant, for twenty years, or more, is a bar to his right of entry ; it is not so to him in remainder, or reversion ; since the wrong was one, of which Ae could not complain, during the continuance of the particular estate. And in the case of Bradbury v. Grinsell, (Mich. 41 Geo. 3. K. B.) the same distinction was applied to the case of an easement, even after an uninterrupted enjoyment of it for fifty-two years, upon lands in the possession of particular tenants, 2 Wins. Sound. 175. d. notis. The reversioner, in that case, Was hidden nol to be affected by this great length of enjoyment, because he had not acquiesced in any violation of his own rights. AVIien, on the contrary, the enjoyment of an easement, or of any incorporeal thing, must, if unaccompanied with title, have been an infraction of another’s right ; the voluntary acquiescence of the latter, for fifteen years, furnishes presumptive evidence of a grant, or agreement, legalizing such enjoyment. For it is a fair presumption, that no one would voluntarily, and gratuitously submit, for such a period of time, to a continued trespass, or other infraction of his legal rights. In such cases, therefore, there is a reasonable foundation for the presumption of a grant. Upon this principle it is, that one may, by length of adverse user, acquire a right of way, over the hind of another, to divert a natural stream from it, or to overflow it, \

But where such enjoyment, by one party, has occasioned tio injury, or inconvenience, of which the other could have complained, there is no such acquiescence, by the latter, as to raise any presumption whatever j no acquiescence, in a sense, v. implies submission to a violation of his own rights : and hi? silence, or inaction, cannot, therefore, upon any principio, I think, be construed into a presumption of his having granted away, or abandoned, any of them.

The doctrine laid down by the Chief Justice of this Court, in Chalker v. Dickinson, 1 Conn. Rep. 382., and in which alt the Judges, who gave opinions in that case, concurred, is, as I understand it, strictly conformable to these principles. It is said, in that opinion, “ easements may be acquired by uninterrupted possession for fifteen years ; such as rights of way, &c. But in every case of this description, the use and possession, in the first instance, are a usurpation of the rights of some other person ; and an action would always lie, till the fifteen years were elapsed.” This language expresses, very exactly, my present view of the subject.

If I could regard the determination in Sherwood v. Burr, as in point, for the plaintiffj I might feel myself bound by thqt decision : but I cannot so consider it. In point of precedent, that case does not, in my judgment, compare with the present ; and the reasoning of the Chief Justice, in delivering the opinion of the Court, was, substantially, conformable to the principles I have just advanced. My reason for considering the cases unlike, in point of precedent, is, that the former did not, according to my view of it, depend at all upon length of enjoyment, nor, of course, upon the doctrine of presumption. The plaintiff, in that case, having liad, confessedly, an original and natural right to use the stream, as he had done, the casting hack of the water upon his wheel, was an injury, for which he might have recovered, if his mill liad then stood but a year, or a day. And the opinion of the Court recognizes the necessity, (in order to found a presumption from length of enjoyment) of a possession “ adverse and exclusive,” in analogy to the statute of limitation j and this analogy requires, as I have remarked already, that the defendants should have voluntarily acquiesced in a violation of their rights.

Now, in the present case, the parties, or those under whom they respectively claim, had, originally, a natural and equal right to the use of the stream in question. If the defendant had diverted the stream from the plaintiff’s land ; or if the plaintiff had, by obstructions, cast it back, and overflowed the land of the defendant; and the injury had been acquiesced in, for fifteen years, on either side ; a grant might now be presumed, in favour of one, or the other, of the parties. And the same thing might be said of any wrong, in general, of the same continuance, on one side, submitted to, on the other. But no such case as this is before us. The use, which the plaintiff lias made of the stream, has been neither a legal injury, nor an inconvenience of any kind, to the defendant. It was nothing, of which the defendant had any right, to complain. He has, therefore, acquiesced in no usurpation of his rights ; and has been guilty of no neglect, in not asserting them sooner. For it would seem extraordinary, to charge a man with neglect, for omitting to seek redress, where there is no wrong ; or for not complaining, where there is no ground of complaint. And the only principle, upon which the defendant can be supposed to have forfeited his natural right to use the stream in question, as he now does, must be, that he did not build his mill, within the fifteea years, whether it would, then, have been of any use to him, or not — and whether he was in a condition to build it, or not.

And what, on the other hand, is the injury of which the plaintiff complains ? It is not, that the stream has been diverted from his mill. If this had been done, he would, undoubtedly, have a right of action, whether his mill^ stood fifteen years, or but one year. But the water transmitted to him, in its natural channel ; and ⅞ wnl wrong complained of is, that part of it is interrupte course, and delayed in arriving at his wheel. Thisp brings the case directly within that of Palmer v. Mertigon, 3 Caines 307.; a case, in which it was expressly decided, (by divided opinion, it is true,) that under circumstances, prec like the present, such a temporary interruption of a stream, there being no diversion of it from the plaintiff’s mill, was not a ground of action. The case of Weston v. Alden, 8 Mass. Rep. 136. was determined by the Supreme Court of Massachusetts, upon the same principle. In that case, which was an action for diverting an ancient water-course from the plaintiff’s meadow, the defendant, who owned land above, upon the stream, had let the water out of its banks, into-sluices, to irrigate his own land, but returned it into its natural bed, before it reached the plaintiff’s meadow-; so that it still passed the plaintiff’s meadow, but in a quantity greatly-diminished, by absorption upon the land of the defendant, and evaporation : in consequence of which, the meadow of the plaintiff was greatly damaged. But though the plaintiff, and those, under whom lit: claimed, luid before* from time imine-moiiul, liad the benefit of the undiminished stream, to ferti - lize. the meadow in question j the court held this interruption am! uimiuiüion of the stream, to he damnum, absque injuria.

Of the English cases, none, which have been cited for the plaintiff, are in point ; and from the short examination, 1 have been aide to give them, my first impressions are, by no means, weakened. The case of Bealy v. Shaw is wholly irrelevant to the present question. The plaintiff ⅛ right was not founded upon presumption, from length of time. Indeed, at the time of the injury complained of, he had used the water but twelve years : and his right of action would have been complete, if he had used if, but one year, or one hour. For the gravamen was the diversion of the water of a river, to the damage of the plaintiff's mills below ; and this was. confessedly, a violation of his natural right to the use of the stream, unless a right so to divert it, could be presumed, from the fact, that the defendants, and those under whom they claimed, had, for upwards of seventy years, diverted a smaller portion of the water. And the only point decided, upon the question of presumption, was, that a right, in the defendants, to divert the -whole stream, could not he presumed from their having, for any length of time, diverted a pa'rt of it. It is true, that the right of the defendants to divert that part of the water, w hich had been so long diverted, was admitted, on both sides, at the bar, as well as by the court; and upon the principle, for which I have contended, the right was, so far, undeniable. For no part of the water diverted, ever returned i.o its natural channel, till after it passed the plaintiff’s mills. The original diversion was, therefore, a plain act of usurpation, of which those who then owned the plaintiff’s land, might have complained, but in which they, and those claiming under them, had acquiesced, till it was too late to complain, (ireat stress has been laid, however, upon an observation of Lord EUenborough, in the last case, that twenty years’ exclusive enjoyment of the water, in any particular manner, affords a conclusive presumption of right, in the party so enjoying it.” But is it to be taken for granted, that this observation was meant to include an enjoyment, commencing, and continued, rightfully ? It was probably made with reference to the case then under consideration, or to that which had-been stated, by way of supposition, in the observation immediately preceding : acaso, \⅜Itirii supposes the enjoyment to commence in usurpation. In the case of Healey v. Slant:, then, there is nothing* 1 trust* that can aid the plaintiff’s claim.

In Holcroft v. Heel, 1 Bas. & Pull. 400. it was decided, merely, that the grantee of a market, by acquiescing, for .twcnly years and upwards, in a disturbance of his franchise, loses his right to recover for the injury. The use of the defendant’s market, in that case, commenced in wrong, and the plaintiff submitted to it for twenty-three years. The case is, therefore, foreign to the present question.

The Nisi Frius case of Balston v. Bensted, 463 Campb. 463. was one, in which the defendant had cut off, upon his own land, and thus diverted, the subterranean flow of a natural spring of water? which issued above ground upon the plaintiff’s land, to the damage of his bath, reservoir, and mill, the former of w hich had stood upwards of twenty years. Now, the use whic h the plaintiff had made of the water, for this period, had not, I admit, affected any right of the defendant. And still, the rule of presumption, arising from the plaintiff’s length of possession, was applied, in deciding the case. But I am unable to perceive, why the plaintiff’s right to recover would not have been the same, if his works had been erected less tluyi twenty years, or had not been erected at all. For his natural right to the use of the spring was as absolute, I conceive, as if the water had flowed, in a rivulet upon the surface, through the defendant’s land, and his ow n ; in w hich case, the diversion of the water would lone hern an infraction of his natural right, though the diversion had commenced immediately after his title to the land accrued. This case, therefore, is not a precedent for the present.

In the single instance of obstructing what are called ancient lights, 1 acknowledge my inability to account, for the adjudged cases, by the distinction, which 1 have been endeav-ouring to maintain. Whether the English rule, in this class of cases, has ever been recognized, or brought under judicial consideration, in this country, I have been unable to learn. And I am by no means certain, that l fully understand the nature of those cases, to which the rule lias been applied, in the English courts. If, by lights, which are proferí; il against obstruction, by twenty j ears enjoj .nent, he mean! such . as project over the- land .of the adjoining proprietor; tiie rases would fall directly within what I consider the. true principles of the rule of presumption. For such a projection won id be an invasion of the adjoining owner’s rights : Citjus cst solum, ejus est usque ad coelum. And I confess, I have sometimes suspected, that the cases, to which the rule is meant to apply, were of this kind : since l find in them, in repeated instances, the expressions, “ the windows were put <mi” at such a time — “ the lights were put out and enjoyed,” &c. 2 If Wms. Saund. 275. b. notis. 11 East, 372. In Daniel v. North, 11 East, 372. the windows in question are called “ the encroaching lightsand the adjoining tenant is represented, in the argument, as having been guilty of « laches, or acquiescence, in that, which was a prejudice to the inheritance.” Id. 373. And in the case of Dougal v. Wilson, the second action of the kind, I believe, of which we have any knowledge, Wilmot, Ch. J. speaks of the possession of windows, for a great length of time, as “ amounting to a grant of the liberty” (not of holding them free from obstruction, but) “ of making them,” or, to « evidence of an agreement to make them.” Now,the language used, in these instances, is to me hardly intelligible, except upon the supposition.» that the lights in question were, originally, encroachments.

But admitting this supposition to be, as it very probably may be, entirely groundless — I still cannot, for several reasons, regard this class of cases as governing the present. In the first place, supposing the lights, protected by the rule» not: to have encroached upon the adjoining proprietor — ■ nothing can be more unsatisfactory to my mind, than the reason, originally assigned for the rule, viz,, that as twenty years possession would give title in ejectment to a house; the owner ought not, after that length of possession, to he disturbed in the lights, belonging to it. But if, as I am now supposing, (and as must be assumed, to make out the necessary analogy, to the present case,) the house and lights were both, at first, exclusively upon, or over, the land of the owper of the house.; the same reason would protect the lights against obstruction, from the moment they were made : for he would certainly be entitled to the undisturbed occupation of the house, from the moment of its erection. Again: upon tiie present supposition, the rule, in the case of lights, is, I think, unquestionably anomalous; and therefore, not tobe extended by analogy. Besides: to what extent does this privilege, or protection, go, where it actually exists? Does the adjoining proprietor lose all right to erect a building upon his own land, whenever it would, in the least degree, diminish the light of a privileged window? Is he precluded from building at the distance of three rods, or one rod, or even at a less distance, from his neighbour’s windows? I am not aware, that the rule was ever claimed to extend so far. It goes no further, as I understand it, than to protect windows, which have been long used, from being obstructed, or, as it is often expressed, in the hooks, “ stopped up.” To apply these cases, then, by analogy, to the present question, it would he necessary, that the defendant in this action should have diverted the stream, or, in some way, have deprived the plaintiff of the use of it. Whereas the complaint, here, is only of a temporary interruption of part of (he stream, the whole of w hich eventually passes by the plaintiff’s mill : an interruption, exactly similar to that in Palmer v. .Mertigon, and much less than that in Wes ton v. eliden; in both which eases, it was resolved, that the damage sustained was no legal injury.

One further consideration, which, though certainly' not conclusive in any case, is, at least, entitled to attention, lias some influence on my mind. The same state of facts, upon which we are now to decide, must, in ail probability, have occurred, in very numerous instances, long before this time, both in England, ami in this country. But it docs not appear, than an action has ever been sustained, in such a case.

Upon the whole, I ilrnl myself, at present, constrained ⅛ think, that the plaintiff has no cause of action.

Pktkrs, J. gave no opinion, having been formerly of counsel in the cause.

New trial not to be grantetL


source: Caselaw Access Project

author: Swift, Ch. J. Gouim, J.

license: Public Domain

text:
    The town of Barkhamsted against The town of Farmington.

      New-Haven,

    November, 1818.
    An inhabit-cliitSCtl land in another, and took an absolute deed thereof in fee, ofthe value of 190 dollars ; which lie immediately went into possession of, and resided on, about two years ; having, at the time of taking such deed, given backamort-gage to secure 140 dollars, part of the purchase money. Held, that he acquired, by such absolute deed and residence, not-withstanding the mortgage, a settlement in the latter town.
    THIS was an action of assnmpsU,- for nrces*.«fur-nished by the plaintiffs, between the 1st day of and (lie 1st day of August, 1815, to Erastus Peck, a pauper, alleged to be an inhabitant ofthe town of Farmington.

    The cause was tried at Litchfield, August term, 1818, before Trumbull, Hosmer and Gould, Js.
    On the trial, the only question was, whether the settlement ofthe pauper, at the time when the plaintiffs supported him, was in Farmington, or in Colebrook. It was admitted, that from the 25th of April, 17"98, to the 1st of April, 1801, ht was legally settled in Farmington. On the 1st of April, 1801, Eliakim Peck, the pauper’s father, during the minority of the pauper, and while he was living in his father's family, purchased of Arah Phelps of Colebrook, twenty-two acres, and three-fourths of an acre, of land, lying in that town ; of the value of 190 dollars,’ which the vendor, Indeed duly executed, conveyed in fee-simple to the purchaser ; who went immediately into possession, erected on the land a small house, and dwelt therein with his family, the pauper being one, about two years. At the time of this conveyance, Eliakim Peck re-conveyed, by mortgage deed, the same land to Phelps, as collateral security for 139 dollars, 68 cents, part of the purchase money, the residue being paid. The last mentioned deed was recorded on" the 14th of November 1803. It was admitted, that the pauper had gained no settlement subsequent to that in Farmington, unless be bad, by-virtue of the conveyance from Phelps to his father, and bis residence as a member of his father’s family in Colebrook, gained a settlement there. The plaintiffs claimed, that this conveyance conferred no settlement on the father, and of course, none on the pauper. But the court charged the jury, that the title to the land, vested in Eliakim Peck, by the conveyance from Phelps, in connexion with said residence, was sufficient, notwithstanding the mortgage given back, to constitute him, and his son, the pauper, legal inhabitants of Colebrook. The jury having found a verdict for the defendants, the plaintiffs moved for a new trial, on the ground of a misdirection ; and the court reserved the motion..

      iJ. Mhier, in support of the motion,
    contended, 1. That under our statute, a settlement cannot be gained, by virtue of an equity of redemption, of any amount in value. A mortgagor lias no estate in*fee j the fee being in the mortgagee. He has not the right of possession ; but may be turned out, at any moment, without notice. Rockwell. & at, v. Bradley, 2 Conn. Rep. 1. U’akamn v. Banks, 2 Conn. Rep. 445. The statute evidently contemplates a legal estate, not a mere equitable one. If it be said, that iiliakim Peck had a lega! estate, as he took an absolute deed from Phelps ; the answer is, that the absolute deed, and mortgage deed, were executed at the same time, and constituted but one transaction. The case stands upon the footing of that transaction, taken integrally ; and not upon one part disconnected from the other. That a widow may have dower, in an equity of redemption, does not prove that it will confer a settlement; for the statute regarding dower does not require that the husband should have been possessed in fee, but simply, that he should have been possessed, in his own right. Besides, dower is peculiarly favoured ; and this consideration lias, undoubtedly, had its influence, in persuading the courts of this, and a sister state, to depart from the established rule in England. Fish v. Fish, 1 Conn. Rep. 559. Hitchcock & al. v. Harrington, 6 Johns. Rep. 290. Collins v. 'Parry, 7 Johns. Rep. 278.
    The. statute being made for the public good, ought to be construed so as to attain the end. But if a conveyance and re-conveyance, executed at the same time, will confer a settlement, the end is obviously not attained ; the statute is evaded, by a form ; and the paupers of one town, without any substantial qualification, may be imposed on another.
    2. That, at any rate, the equity of redemption must be of the value of 100 dollars. It is the amount of the mortgagor’s interest, and not the value of the lain! included in the mort-gat^e, which is to give the rule. In an estate mortgaged for less than its value, the mortgagor and mortgagee have dis-tind interests; and each is susceptible - f a precise valuation, The tee of the land, with the right of possession, is -in the mortgagee; which, being in equity subject to redemption, is worth to him what it is pledged for. The right of redemption is in the mortgagor; and this right is worth to him, the difference between the value of the land, and the mortgage debt. Accordingly, in the present case, the mortgagee’s interest was 139 dollars, 68 cents, and the mortgagor’s, 50 dollars, 3£ cents. On a different construction of the satute, an utter bankrupt, being mortgagor of property mortgaged for twice its value, might thereby gain a settlement.

      Bacon, contra,
    remarked, that the legislature having expressly provided, that the being possessed in fee of real estate, of a certain value, is sufficient to gain a settlement, without prescribing any period of time for the continuance of such possession, courts of justice will give effect to the law as they find it, without regard to considerations of policy. He then contended, 1. That Peck, as mortgagor, was possessed of real estate in the town of Colebrook, During his residence in that town, there was no entry, or foreclosure, by the mortgagee : he was mortgagor in possession. Then, was he possessed in fee, and was his interest real estate? Of this, there can be no doubt. A mortgagor’s interest descends to heirs, as real estate ; it is subject to execution, as real estate.; it is subject to dower, as real estate ; it is, in England, a qualification to vote for members of parliament'; in short, the mortgagor, and no one else, is the real owner of the land. Jackson v. Willard, 4 Johns. Rep. 41. Hitchcock v. Harrington, 6 Johns. Rep. 290. 294. Collins v. Tarry, 7 Johns. Rep. 278. Fish v. Fish, 1 Conn. Rep. 559. Sedgwick v. Hollen-back, 7 Johns. Rep. 376. Runyan v. Mersereau, 11 Johns. Rep. 534. The King v. St. Michael’s, Dougl. 630, 632. The King v. Edington, 1 East, 288. 293. •
    2. That as the fee must have vested ⅛ Peck, under the absolute deed from Phelps, before the mortgage was, or could be, given back, this alone was sufficient.

      4. That as the mortgage deed was not recorded until nearly three years after it was given, Peck had, during the whole of the time he was in possession of the estate, a clear record title $ a deed not recorded being void, except as against the grantor and his heirs. French v. Gray, 2 Cana. Hep. 02.
    4, That the fee of the land being in the mortgagor, and that land being of the value of 190 dollars, the qualification was sufficient in amount.

        а) Tit. 91, s. 3. The words are — “ That no inhabitant of any town in this state, shall gain a legal settlement in any other town in this state, unless he shall have been possessed, in his own right, in fee, of a real estate of the value of one hundred dollars, in the town to which he may have removed, during his continuance therein.”

        Tit. 51. c. 1. s. 1. The words are — " That every married woman,” in the cases specified, “ shall, immediately upon and after the death of her husband, have right, title and interest, by way of dower, in and unto one third part of the real estate of her said deceased husband, in houses and lands, which he stood possessed of in his own right, at the time of ins decease, to be to her during her natural life." '

   Swift, Ch. J.

By our statute respecting settlements, an inhabitant of the state may gain a settlement, by being possessed of an estate, in his own right in fee, of the value of one hundred dollars, during his residence therein. It is not required, that the purchase money be paid, or that the purchaser should hold it for any length of time. It is sufficient, if he is possessed in fee, during the shortest conceivable period of time.

It appears, that Eliakim Peck, the father of the pauper, purchased in Colehrook an estate in fee, by deed duly executed, of more than the value of one hundred dollars; and that he mortgaged it, at the same time, to secure the purchase money. But the title of the land must have vested in Peck, before the mortgage could have taken place j for they were distinct conveyances. Of course, there was a time when Peek was possessed in fee of the land ; and by operation of She,statute, he gained a settlement thereby in Colehrook.

It is said, that by such construction of the statute, paupers may easily gain settlements in towns. If such purchase should be made with a fraudulent intent, to impose the burden of supporting a pauper on a town, such fraud would defeat it 5 but if done bonajitle, a court of law cannot cnntroul the effect of such conveyance. If any Inconvenience is to be apprehended from this source, it belongs to the legislature to provide the remedy.

Gouim, J.

The only question is, whether Eliakim Peck, the father of the pauper, gained a settlement in Colehrook, under the conveyance made to him, by Phelps. For if the father thus acquired a new settlement, it was, of course, communicated to tiie s*>n, who was a minor belonging to his father's family. I am of opinion that Eliakhu. did thus gain a settlement in Colebrook ; and that the direction to the jury was. therefore, right.

The grounds of the motion are two : First,.that the interest, acquired by Eliakim, the father, under the deed from Phelps, was merely equitable ; and, secondly, that the value of this interest was not sufficient to confer a settlement. Both these questions depend upon the construction of our statute | (til. 91. s. S.J under which, Eliakim, to have gained a settlement in Colebrook, must have been “ possessed, ⅛ his own right, in fee, of a real estate of the value of 100 dollars,” in that town. And I am fully satisfied, that he was there possessed of such an estate, within the meaning of the law.

It is not correct, in the first place, to say, that the estate of Eliakim Peck was a mere equity, at the time, to which the question relates. The equity of redemption, upon a mortgage, does not accrue, until there is a forfeiture, by a breach of the condition. But, at the time, when Eliakim must have acquired a settlement in Colebrook, if he acquired it, at all, the condition of the mortgage-deed was n&t broken. His right, of redemption was, then, at law.

It might also, in strictness, be urged, that the conveyance from Phelps to Eliakim, vested the latter, at the time of the delivery of the deed, with the absolute fee, at law : for though the absolute deed from Phelps, and the mortgage-deed back, were, doubtless, given in pursuance of one entire original agreement | still, it is not true, that the two deeds constituted but one conveyance, or were, in any proper sense, component parts of one instrument, or common assurance. The mortgage-deed, given back, by Eliakim, qualified the interest conveyed to him by the absolute deed ; but did not, and could not, qualify, or affect, the latter deed itself. For the legal effect, or construction, of the one could, in no degree, be varied, or influenced, by the other. And if the legal fee once vested in Eliakim ; it seems immaterial, under our statute, whether it continued in him, for any particular period, or not: since the statute does not require any given continuance of title, or possession.

But waiving these, and all other narrow, or technical, grounds, I choose to found my opinion upon the broader one, that the equity of redemption upon a mortgage in fee, is a» estate in fee, as effectual to confer a settlement, as a legal fee. It is now too late to question the general doctrine, that the mortgagor, in such a case, is the owner of the land, and to be regarded, as such, at law, to every purpose, except the right of possession, which is at the controul of the mortgagee. This rule is established, by such high and multiplied authority, that it is no longer open to debate. Martin v. Moulin, 2 Burr. 965. Rex v. St. Michael’s, Bath, Doug. 630. Rex v. Parish of Edington, 1 East, 288. Jackson v. Willard, 4 Johns. Rep. 41. Hitchcock v. Harrington, 6 Johns. 290. Sedgwick v. Hollenback, 7 Johns. Rep. 376. According to this doctrine, Eliakim owned the fee of the land, and was seised of it, to every practical purpose, for about two years. The statute requires, that he should have been « possessed, in his own right, in fee, of a real estate,” &c. Now, if there were no other case, to prove, that he was possessed of such an estate ; that of Fish v. Fish, determined in this Court, June term 1816, (1 Conn. Rep. 559.) w ould be decisive of the point. The question, in that case, arose upon a claim of dower. The statute of dower entitles the widow to a life-estate in « one third part of the real estate of her deceased husband, in houses and lands, which he stood possessed of, in his own right,” &e. In the statute of settlement.-, the clause, upon which the present question arises, provides, that an inhabitant of one town in this state, must, to gain a settlement in another, be “ possessed, in bis own right, in lee, of a real estate,” &c. in the latter town. Under the former of these statutes, it was resolved, in the case of Fish v. Fish, that a mortgagor in possession, under a forfeited mortgage in fee, was possessed of the realty, in his own right, and that his widow wras, therefore, entitled to dower. Now, as these two statute-provisions are, in their terms, almost identical, and to every purpose, material to the argument, entirely so ; I regard the case of Fish v. Fish, as decisive, that an equitable interest may give a settlement.

It is objected, however, in the second place, that the statute requires a real estate « of the value of 100 dollars and that the value of Eliakim Peck’s interest, under the deed from Phelps, did not amount to this sum — in other words, that his interest was equal in value, only to the part, which he had advanced, of the purchase-money. But if the principles, I have just advanced, an' correct, he was the owner of the land, which was w oríh 190 dollars : and the objection, that the laud was pledged lor the residue of the purchase-money, has only the saint* bearing upon the question, as to say, that that residue was unpaid, '.¡’here are provisions, in the English settlement-laws, requiring, in addition to the purchase of an estate, a particular period of residence upon it, and the actual payment of a certain sum, as purchase-money : hut the provision in our law, upon which the present question depends, prescribes no such requisites. Suppose, then, that Eliakim Peck had owed 190, or 10,000 dollars, for which this land might have been attached, or had been actually attached, within a month, a week, or a day, after his deed from Phelps; Or suppose, that, instead of giving hack a mortgage, he had given his own personal security, for the whole purchase money, payable in ten days, or on demand | and that, on failure of payment, the land had been attached, and afterwards set off on execution. In either of these cases, lie would, confessedly, have gained a settlement. And what difference could it make, in principle, or practical effect, \\ bother he had taken the one, or the other, of these courses. The town of Colebrook would have been as secure against the risk of his becoming chargeable, in the one case, as in the oilier, and no more so. Our law' of settlements recogni-ses no such thing, as raising an account current, and striking a balance between the amount of what a man possesses, and what he owes. It is sufficient, in this case, that Eliakim Peck ts possessed a reul estate, of the value of 100 dollars.’*

The suggestion, that according to these principles, the paupers of one town may, by sham conveyances, be shifted upon another, has, in my judgment, very little weight in it. That any one town would attempt such a fraud upon another, is not to be presumed, under any circumstances ; but especially, when it is considered, that no one town is more exempt, than any other, from the practice, or retaliation, of such frauds. In courts of justice, at any rate, the proper time to consider the question of fraud, will be, when that question is made. And if the law, as it now stands, is open to frauds of this kind ; it is the business of the legislature, and of the legislature only, to guard against them.

The other Judges were of the same opinion.

New trial not to he granted.