CASES

DETERMINED IN

THE SUPREME COURT

OF

NEW HAMPSHIRE.

HILLSBOROUGH, JUNE, 1881.

WHEELER & WILSON MANUFACTURING Co. v. TAFT.

A judgment upon a debt provable in bankruptcy, rendered after the defendant's petition in bankruptcy was filed, and before his discharge, is not barred by his discharge.

DEBT, on a Massachusetts judgment recovered in October, 1878. The plaintiff demurred to a plea which averred the defendant was discharged in bankruptcy, September 6, 1879, from all debts provable in bankruptcy, and existing January 9, 1877, the day of the filing of his bankruptcy petition; the judgment is founded on causes of action existing on that day, and provable in bankruptcy; and the judgment was rendered after his petition was filed, and before his discharge.

G. Y. Sawyer & Sawyer, Jr., for the plaintiff.

A. F. Stevens, for the defendant, cited Dawson v. Hartsfield, 79 N. C. 334; Smith v. Kinney, 6 Neb. 447; Monroe v. Upton, 50 N. Y. 593; Pattison v. Wilbur, 10 R. I. 448; Ogden v. Redd, 13 Bush. 581; Matter of Brown, 5 Ben. 1; In re Rosey, 8 Bank. Reg. 509.

DOE, C. J. For reasons given in the Massachusetts decisions, we think a defence is not stated in the plea. Bradford v. Rice, 102 Mass. 472; Holland v. Martin, 123 Mass. 278.

Demurrer sustained.

SMITH, J., did not sit: the others concurred.

VOL. LXI. 2

WHEELER v. WILDER.

The defendant's race-way for his mill is upon land of the plaintiff, and is held by a grant in a deed made in 1821, conveying a right to cut a canal through the land to carry the water from the mill to the river, "to be of sufficient width to carry the water, with the right to dig the same one rod and one fourth if needed." The owners of the mill cut a canal a rod in width, and used it for over fifty years, the owners of the plaintiff's land during all the time occupying and using the land to the banks of the canal. This is not conclusive evidence of an election of a canal of that width, or of a location of the easement binding upon the owner, nor, as a matter of law, an abandonment of the right to cut a canal of the full width of the grant, if needed for the use of the water-power.

The widening of the canal, by the defendant, to the full width of the grant, if reasonably necessary for the use of the whole water-power, is not an invasion of any right of the plaintiff for which he can recover. If, in widening the canal to the full width of the grant, the defendant has thrown and left the earth excavated upon the banks of the canal, he is not liable for damage to the plaintiff, if depositing the earth there was reasonably necessary in constructing the enlargement. If the banks of the canal have fallen away through the action of the natural elements of frost and rain, and not through faulty construction, the defendant is not liable.

TRESPASS, qu. cl. Facts by a referee. The defendant owns a mill, with water-power and privileges, upon the Contoocook river in Peterborough. The race-way of the mill is a canal discharging into the river over eighty rods below, and, excepting for a short distance near the mill, is upon the plaintiff's land. In 1821, Steele, owning both the plaintiff's and the defendant's land, conveyed to the Peterborough North Factory Company the factory premises and water-power, together with the right to cut a canal to carry the water from the factory through his land from a short canal near the mill to the river, "said canal to be of sufficient width to carry the water, with the right to dig the same one rod and one fourth wide if needed." The defendant now owns what was conveyed by Steele's grant, and the plaintiff owns the land through which the canal has been constructed. Soon after the conveyance in 1821, a canal was made of the width of one rod, and was used as a race-way to the mill, continuously, until 1874, when the plaintiff cleared out the sand and gravel with which it had become obstructed, and filled up the short canal, so that all the water from the mill passed through the canal upon the plaintiff's land. In 1873, the defendant built a saw-mill adjoining the factory, and

added one water-wheel, the water for its operation being furnished from the factory mill-pond, and being carried away in the canal. In 1878, the canal not being of sufficient capacity to enable the defendant to make use of all his water-power, he widened the canal about four feet and deepened its channel about two feet for a distance of thirty rods from its mouth, and threw the earth excavated by such widening and deepening upon the canal bank in a mound. This earth is not suitable to spread upon tillage land, and is an incumbrance to the plaintiff. The widening and deepening of the canal were necessary for a reasonable use of the defendant's waterpower. By the action of the frost and rain, the banks of the canal, in places, fell off after the widening. The plaintiff claims damages for widening and deepening the canal, for throwing the earth upon the bank of the canal and leaving it there, and for the falling in of the banks. The plaintiff also claimed damages for the defendant's digging and carrying away the soil, and undermining the plaintiff's buildings on a tract of land west of the mill, the title to which was in dispute. The referee found the title to a part of the tract in the plaintiff and a part in the defendant, and assessed damages for the defendant's invasion of the plaintiff's part.

E. M. Smith, for the plaintiff. The case raises three questions: 1. Had the defendant a right to widen and deepen the canal beyond its width and depth as originally made?

2. Had the defendant a right to place and leave the materials, taken from the northerly end of the canal, upon the adjacent banks on the plaintiff's land?

3. Had the defendant a right to widen the canal so that it should be one and one fourth rods wide at the surface of the ground? and if he did it, was it incumbent on him to so leave the banks that they should not cave off?

The first question presented in this case will be decided, we think, by the construction given to the original conveyance of the canal to the Peterborough North Factory Company in 1821, and the manner in which said canal has been used for more than fifty years. After describing the location of the canal in the deed, the following words are used: "Said canal to be of sufficient width to carry the water, with the right to dig the same one rod and one fourth wide if needed." The plaintiff claims that after the company had dug their canal, and it had been used for more than fifty years the same width that it was dug, the plaintiff and those under whom he claims having improved and occupied the adjoining land on each side, during all that time, up to the edge of the canal as dug, left and used by said company, the company by those acts elected the width that was needed for said canal. The plaintiff also claims that if by these acts of the company they elected the width needed for said canal, and allowed the plaintiff, by improving and occupying the adjoining land to the edge of said canal, to gain rights to