lays down the rule very strictly, that the owner of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below. (6) But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. It must be subjected to the qualifications which have been mentioned, otherwise rivers and streams of water would become utterly useless, either for manufacturing or agricultural purposes. The just and equitable principle is given in the Roman law: Sic enim debere quem meliorem agrum suum facere, ne vicini deteriorem faciat. (c) 2 (8.) Easements acquired and lost by prescription. 1. This natural right to the use of waters, as an incident or particular easement to the land, may be abridged, or enlarged, or modified, by grant or prescription. (d) Though a stream be diminished in quantity, or corrupted in quality, by means of the exercise of certain trades, yet if the occupation of the party so taking or using it has existed for so long a time as to raise the presumption of a grant, and which presumption is the foundation of title by prescription, the other party whose land is below must stream. Brown v. Best, 1 Wilson, 174, S. P.; Smith v. Adams, 6 Paige, 435, S. P. The owner may dig a well on any part of his own land, though he thereby diminishes the water in his neighbor's well, in the absence of grant, or adverse user, or malice. Greenleaf v. Francis, 18 Pick. 117. (b) Traité de Contrat de Société, second App. No. 236. (c) The Code Napoleon, Nos. 640, 641, 643, 644, and the Civil Code of Louisiana, arts. 656, 657, establish the same just rules in the use of running waters. So, in North Carolina, Missouri, &c., the regulations of grist-mills and mill-dams is deemed a matter of public concern, and subject to statute prescriptions. Revised Statutes of Missouri, 1835; R. S. North Carolina, c. 74. (d) Prescription is a title acquired by possession had during the time, and in the manner fixed by law. Co. Litt. 113, b. 2 See Embrey v. Owen, 4 Eng. L. & Eq. 476. The preceding doctrine of the text is quoted and approved. A riparian proprietor has the right to irrigate his land from the stream, if he does not interfere with the rights of other proprietors; and whether his use be reasonable or not, depends on the circumstances of each case. As to what is and what is not such reasonable use, see Pitts v. Lancaster Mills, 13 Metcalf, 156; Dickinson v. Grand Junc. C. Co. 9 Eng. L. & Eq. 513; Sampson v. Hoddinott, 38 Id. 241; Thomas ». Brackney, 17 Barb. (N. Y.) 654; Kauffman v. Griesemer, 26 Penn 407; Dilling v. Murray, 6 Porter (Ind.) 324; Snow v. Parsons, 2 Wms. (28 Vt.) 459 Parker v. Hotchkiss, 25 Conn. 321. take the stream subject to such adverse right; 2 and twenty years' exclusive enjoyment of the water in any particular manner, af fords, according to the English law, and the law of New York, Massachusetts, and several other states, presumption of *442 such a grant. (e) But nothing short of a contract, or of such a time of enjoyment of water diverted from the natural channel, or interrupted by dams or other obstructions, or materially changed in its descent or character, will justify the owner as against any land-owner above or lower down the stream, to whom such alterations are injurious. In the character of riparian proprietors, persons are entitled to the natural flow of the stream without diminution to their injury, and to them may (e) The time of limitation varies in particular states. Thus, in Connecticut and Vermont, the term of prescription is fifteen years, and in South Carolina five years. Manning v. Smith, 6 Conn. 289; Martin v. Bigelow, 2 Aiken, 184.1 Anderson v. Gilbert, 1 Bay, 375. But the law in South Carolina on the subject of prescription does not seem to take its rule from the Act of Limitations of 1712, for in Sims v. Davis, 1 Cheeves Law and Eq. 2, it was declared or assumed as settled law, that twenty years of enjoyment of a way over another's land, was presumptive evidence of right. Even a right of way over the uninclosed lands of another, may be acquired by twenty years' enjoyment thereof, under an assertion of right by the one party, or admissions thereof by the other. In Louisiana, the time of prescription varies according to the subject, from three to thirty years. Civil Code, arts. 3435-3476. But I presume that gener ally, in this country, we follow the English time of prescription. It was so understood by Ch. J. Parker, in Gayetty v. Bethune, 14 Mass. 49, and in Gilman v. Tilton, 5 N. Hamp. 231, and by Chancellor Vroom, in Shreve v. Voorhees in 2 Green (N. J.) 25. In Louisiana, the right of drip is acquired by prescription, on an enjoyment of ten years without complaint. Vincent v. Michel, 7 Louis. 52. In Pennsylvania, the time requisite to defeat the right to an incorporeal hereditament, by non-user, is twenty-one years. Dyer v. Dupui, 5 Wharton, 584.5 The English statute of 2 and 3 Wm. IV. c. 71, commonly called the Prescription Act, establishes the prescription of twenty years arising from the uninterrupted enjoyment of a way, or watercourse, or light, as a legal bar; and in this respect the statute seems to be declaratory of the pre-existing law, arising, however, from a presumption to be drawn by the jury. But this statute is liable to the reproach of being carelessly and obscurely drawn. See Gale & Whatley on Easements, 97, 123. The statute further declares, that an interruption of the use of an easement, acquiesced in for a year, with notice thereof, and of the authority under which it is made, will prevent a right from being acquired. It does not apply to the extinguishment of an easement already acquired. 8 Moore v. Webb, 1 C. B. (N. S.) 673. 4 Arbuckle v. Ward, 3 Wms. (29 Vt.) 43. 5 Okeson v. Patterson, 29 Penn. State, 22. 6 Payment of an annual sum for the use of an easement is not an interruption within the statute. Plasterer's Co. v. Parish Clk's Co. 6 Eng. L. & Eq. 481. See, also Eaton v. Swansea Waterworks' Co. 5 Id. 450. be applied the observation of Whitlock, J., in Shury v. Pigott, (a) that a watercourse begins ex jure naturæ, and having taken a course naturally, it cannot be diverted. But, on the other hand, the owners of artificial works may acquire rights by actual appropriation, as against the riparian proprietor, and the extent of the right is to be measured by the extent of the appropriation, and the use of the water for a period requisite to establish a conclusive presumption of right. In such a case, the natural right of the riparian proprietor becomes subservient to the acquired right of the manufacturer. (b) The general and established doctrine is, that an exclusive enjoyment of water, or of light, or of any other easement, in any particular way, for twenty years, or for such other period less than twenty years, which in any particular state is the established period of limitation, (c) and enjoyed without interruption,2 becomes an adverse enjoyment sufficient to raise (a) 3 Bulst. 339. (b) Brown v. Best, 1 Wils. 174; Bealey v. Shaw, 6 East, 208; Tyler v. Wilkinson, 4 Mason, 397; Hatch v. Dwight, 17 Mass. 289. The law of watercourses, whether natural or artificial, is the same; and the uninterrupted flow of water for twenty years through an artificial canal, will establish a right through an adit artificially made for draining a mine, and used for a brewery below for twenty years after the working had ceased, and the mine could not afterwards be so worked as to pollute it. Magor v. Chadwick, 11 Adol. & Ell. 571. (c) State v. Wilkinson, 2 Vermont, 480; Cuthbert v. Lawton, 3 M'Cord, 194; Bolivar M. Co. v. Neponset M. Co. 16 Pick. 241. See, also, p. 443, n. b, c. Less than the prescribed term of limitation may, under circumstances, raise the presumption of the dedication of land to the public use. State v. Catlin, 3 Vermont, 530. So, the exclusive enjoyment of an easement, as a right of way, for a less period than twenty years, may form an equitable estoppel to the claim of another person, who has, by positive acts of acquiescence, encouraged an innocent purchaser to buy the land to which the easement was appurtenant. Lewis v. Carstairs, 6 Wharton, 193. 1 Prescription applies only to incorporeal hereditaments; and no right to the use of corporcal property, as, for example, a saw-mill, can be acquired by prescription. Ferris 7. Brown, 3 Barb. (N. Y.) 105. An easement is within the statute of frauds, and cannot be acquired by a verbal agreement. Pitkin v. Long Island Railroad Co. 2 Barb. Ch. 221. The acquiescence of coterminous proprietors in the location of a boundary line, for a length of time sufficient to bar an entry, authorizes the presumption of an agreement. Smith v. McAllister, 14 Barb. (N. Y.) 434; Davis v. Townsend, 10 Barb. (N. Y.) 333. Pollard v. 2 But if the enjoyment be not continuous, no easement is acquired. Barnes, 2 Cush. 191; Branch v. Doane, 18 Conn. 233; Pierce v. Selleck, Id. 321; Delahoussaye v. Judice, 13 Louis. An. 587. An easement cannot be acquired by adverse possession, while the owner of the servient tenement, as agent of the owner of the dominant tenement, lets the latter to third persons for short and not continuous terms. Holland v. Long, 7 Gray, 486. a presumption of title as against a right in any other person, * 443 which might have been, but was not asserted. (d) * The right is confined to the extent and the mode of enjoyment, during the twenty years. All that the law requires is, that the mode or manner of using the water should not be materially varicd, to the prejudice of other owners; and the proprietor is not bound to use the water in the same precise manner, or to apply it to the same mill, for such a construction of the rule would stop all improvements in machinery. (a) He is only not to vary the enjoyment to the prejudice of his neighbor. He may, by his erections and dams, increase the quantity of the water appropriated, or increase the velocity of the current below, provided no material injury be produced to the land or works of the occupant of the stream below him, or to his enjoyment of them.1 This presumption of title founded on that enjoyment, is equally well established in the English (6) and American *444 law. (c) To render * the enjoyment of any easement for (d) Shaw v. Crawford, 10 Johns. 236; Bealey v. Shaw, 6 East, 214; Johns v. Stevens, 3 Vermont, 316. No time short of twenty years will legalize a nuisance; and it is no defence to an action on the case for a nuisance, in carrying on the business of a tallow-chandler, that the defendant had carried on a noxious and offensive trade for three or even ten years before the plaintiff became possessed of his premises. Bliss v. Hall, 4 Bing. N. C. 183. (a) Palmer v. Kebblewhaite, 2 Show. 250. (b) Lewis v. Price, Esp. Dig. 636; Bradbury v. Grinsell, 2 Saund. 175, a; Brown v. Best, Wils. 174; Bealey v. Shaw, 6 East, 208; Balston v. Bensted, 1 Camp. N. P. 463; Saunders v. Newman, 1 B. & Ald. 258; Barker v. Richardson, 4 Ibid. 578; Lewis v. Cross, 2 Barn. & Cress. 686; Williams v. Moreland, Ibid. 910; Livett v. Wilson, 3 Bing. 115; Gray v. Bond, 2 Brod. & Bing. 667; Wright v. Howard, 1 Sim. & Stu. 190; Mason v. Hill, 3 Barn. & Adol. 304. (c) Hazard v. Robinson, 3 Mason, 272; Gayetty v. Bethune, 14 Mass. 49; Hoffman v. Savage, 15 Id. 132; Sherwood v. Burr, 4 Day, 244; Ingraham v. Hutchinson, 2 Conn. 584; Stiles v. Hooker, 7 Cowen, 266; Campbell v. Smith, 3 Halst. 139; Cooper v. Smith, Serg. & Rawle, 26; Strickler v. Todd, 10 Ibid. 63; Tyler v. Wilkin son, Mason, 397; Belknap v. Trimble, 3 Paige, 577. In Massachusetts, the common-law remedy against a mill-owner for overflowing another's land, is taken away, and a special and more limited remedy substituted. The Provincial Statute of 1713 8 Hammond v. Zehner, 23 Barb. (N. Y.) 473. The flooding of another's land for twenty years will be presumed to have been adverse, and it is for the other side to show that it was under a license. Hammond v. Zehner, 21 N. Y. 118. And see Parker v. Foote, 19 Wend. 309; Townsend v. M'Donald, 12 N. Y. 381; Olmstead v. Lewis, 9 N. Y. 423; Blake v. Everett, 1 Allen, 248. 1 Stackpole v. Curtis, 32 Maine, 383; Kidd v. Laird, 15 Cal. 161; Bu 'nett v. White sides, 15 Cal. 35. twenty years a presumption juris et de jure, or conclusive evidence of right, it must have been continued, uninterrupted, or pacific, and adverse, that is, under a claim of right, with the implied acquiescence of the owner. (a) The time of enjoyment allowed the dams of corn and saw mills to stand, though they should cause the land of others to be overflowed, and the injured party was, by a particular process, to have an annual compensation in damages assessed by a jury. Mills, in the infancy of the country, were public easements, and required marked encouragement. But this statute was substantially, and Ch. J. Parker thinks, incautiously, renewed in 1796, when the necessity of such encouragement to mill erections had ceased, and lands had generally risen in value. Stowell v. Flagg, 11 Mass. 364. The Massachusetts Revised Statutes of 1836, p. 676, continued in substance the Colony Act, with equitable and careful regulations. But the exceptionable principle of the act is, that it allows the land above the mill to be overflowed, in the first instance, at the pleasure of the mill-owner, and leaves the injured party to seek his compensation subsequently. There are similar statute provisions in the states of Maine, Rhode Island, and Virginia; and they appear, said the Ch. Justice, to be material and unjustifiable abridgments of the common-law right to the enjoyment of property. The statute of Massachusetts, of 1713, and which was continued in Maine, under the modified statutes of 1821 and 1824, was deemed so inequitable and oppressive to the owners of lands overflowed, that in 1838 a bill was prepared by one, and submitted to another legislature in the state of Maine, for repealing the acts on the subject, so as to leave rights and remedies as to overflowing lands by mills to the operation of the common law, as is the case in most of the other states. In Virginia, the statute regulations concerning the use of running streams, and the erection of mill-dams, provides, that if a person owning land on both sides of a stream wishes to build a dam, he may apply at once, without notice to the owners of the land above and below, for a writ ad quod damnum. The jury summoned under that writ are to examine the lands above and below belonging to others, and declare the damages that would arise to the several proprietors, who are then to be summoned, and the court determines, whether under all circumstances, leave ought to be given to build the dam. If given, the party applying is laid under certain conditions for preventing the obstruction of the passage for fish and ordinary navigation, and convenient crossing of the watercourse, as should seem meet. The applicant upon paying the damages assessed to the parties entitled, may proceed to erect his mill and dam. 2 Revised Code, c. 235; Crenshaw v. Slate River Company, 6 Rand. 245. There is a similar provision, if a person, desirous to build a mill, owns the land only on one side of the stream. 1 Revised Code of Virginia, 277; Revised Code of Mississippi, 1824, p. 336. There are statute provisions of a similar nature in Illinois, North Carolina, Alabama, &c., relative to the erection of mills and dams affecting other riparian owners. Revised Laws of Illinois, edit. 1833; 1 N. C. Revised Statutes, 1837, p. 420; Aiken's Ala. Dig. 2d edit. 325. And in Indiana, the act of 1831 declares minute reg. ulations respecting grist-mills and millers. So in Pennsylvania, by statute of March 23, 1803, the owners of lands adjoining navigable streams of water, except the rivers Delaware, Lehigh, and Schuylkill, may erect dams for mills and other waterworks, and use the requisite water therefor, provided they do not obstruct or impede the navigation of the stream, or prevent the fish from passing up the same. (a) Bracton, lib. 2, c. 23, sec. 1; Ibid. lib. 4, c. 38, sec. 1; Co. Litt. 113, b; Code Napoleon, art. 2229; Sargent v. Ballard, 9 Pick. 251; Rowland v. Wolf, i Bailey (S. C.) 56; Corning v. Gould, 16 Wendell, 531; Colvin v. Burnett, 17 Wendell. 564 |