! CH. 71. 3 Bac. Abr. 686. 1 Bac. Abr. 49. -Rol. Abr. 162.Brownl. 157, & Noy. 184. $12. Navigable rivers are highways; and it is a nusance to divert a part of the water, whereby the current is weakened, and made unable to carry vessels of the same burden, as it could before. So the laying of timber in a common river, though the soil belong to the party, is equally a nusance, as if the soil was not his, if thereby the passage of boats, &c. is obstructed. 13. So it has been decided, that "if I have a mill, and 109.-Hard. my neighbour builds another mill on his own land, by which the profits of my mill are diminished, yet no action lies against him; for every one may lawfully erect a mill on his own land." This is true; but this general position must be understood to apply only to cases where the operations of the new mill are very well confined to the lands of its owner, as below. Dyer 248.1 Bac. Abr. 49.-2 H. VI. c. 14. 1 Wils. 326, Kendrick v. Taylor. 1 Wils. 174, t Com. D. 294. 1 Burr. 440 to 445, Waring v. Giffeth. 2 Esp. 28. 14. "But if I have a mill by prescription in my own land; if another erect a new mill on his own land; if this draws away the stream from my mill, and stops it, or makes too great a quantity of water run to my mill, by which I receive damage, so that my mill cannot grind so much as it was used to do, I shall have an action on the case against him." 15. In this action against Taylor, the court held, the plt. need not prove repairs of a pew against a stranger; but that he must state and prove title against the owner of the soil; for any title in the plt., even possession, is sufficient against a stranger, a mere wrongdoer, who has no title at all. ART. 2. Plt's. right in his mill-stream, water-courses, &c. 1. In this case the plt. stated in his declaration, that he was possessed of a close of his, and water used to run through it, time out of mind, and that the deft. diverted it. Judgment for the plt.; and the court held, that the deft. might cleanse his pits, but not enlarge them as he had done; for by so doing (as appeared) he diverted into them more water of the stream than was the ancient usage. In this case, the deft. owned the land above, and the plt. owned the land below, and claimed a right to have a stream to run to his land, through the deft's. land, in its ancient form and quantity; and time and usage so fixed this right, that the deft. could use only his customary portion of the water, even in his own land. 2. The plt. stated his prescriptive right of burial of any person &c., and omitted the part of the prescription, that he was to pay 2s. a person; and the court held the declaration good. And p. 443, the court said, when one claims a servitude on another's property, he must say and prove the whole against the owner of such property; but that the deft. was a wrongdoer, against whom possession was sufficient; and the distinction is between him and the owner of the soil; and the CH. 71. 2s. was no part of the prescription. Art. 2. 3. In this case, of common, the court held, that if one claim an interest in the land of another, he must state his in- 3 Wils. 278 terest in pleading; but when the action is not against the own- to 291, Ater of the soil, but against even one commoner by another, the Teasdale.plt. need not state his interest in the land; for it is only against 3 Wils. 456, the owner of the land, he need state a title. kinson v. Beau v. 1 Cro. 112, 4. This was an action on the case, for that A and his wife were seized of a water-mill, called Westbury mill &c.; and Broome v. being so seized, they, and all those whose estate they had in Mordaunt, said mill, have had, time out of mind, &c. a watercourse running in the river Westbury to a mill, called Junelly mill, in the county of Norfolk, to said Westbury mill, and from thence over an acre of the deft's. land to Mixbury mill in the county of Oxon, and this without the erection of any mill; and had, time out of mind, the grinding &c.; and being so seized, leased the said mill to the plt. by indenture, whereby he became possessed, till the deft. erected a new mill on the said acre, by which he obstructed the aforesaid water, so that the mill aforesaid was suffocatum, so that the plt. lost the profits of his mill from Demurrer, and judgment for the plt. In this case, the deft., by erecting a new mill, though on his own land, flowed the plt's. mill on his land, and this flowing was a trespass on his land indirectly committed; the flowing, a consequence of erecting the dam, so case, the proper action. to § 5. An ancient watercourse accustomed to run to the plt's. 2 Esp. 446. mill or land, &c. is the same as a prescription, and to claim an ancient mill is the same as to claim one time out of mind. 6. This was an action on the case against Mordaunt, for 1 Cro. 112, flowing by a mill. Jackson v. The declaration states, that A and his Mordaunt. wife were seized to them and the heirs of the husband, of fivé acres of meadow, lying near Westbury river, and being so seized, let them to the plt. by indenture for twenty-one years, by force of which he was possessed, and the deft. on built a mill on and across the said river, by reason of which he obstructed the water running in said river, with his mill, so that the water from time to time, yearly, after erecting said mill, overflowed the banks of the river in said five acres of meadow, and inundated them, by which they became barren &c. to the plt's. damage. Deft. demurred in regard to the manner of seizin laid; overruled, and judgment for the plt.; see also 1 Salk. 21, Tenant v. Goldwin, 459, Roswell v. Prior, and Rex v. Roswell; 3 Salk. 12, Bird v. Stroud; 1 Bac. Abr. 54; 9 Co. 58. From these cases five rules result: 1. If the plt. claim an easement in the deft's. land, as common, a way, a right to CH. 71. Art. 2. bury there, to bring or carry water through it, &c. the plt. must shew a title so to do; for he admits the deft. owns the land, or it so appears, and then when the plt. derives or claims some use or interest therein, as an easement, he must shew how he is entitled, for his claim is against the general right of ownership. But second. Where the plt. claims such an easement against a mere stranger or wrongdoer, mere possession of the easement by the plt., or of the estate whereto it appertains, is sufficient, for this possession is a better right than the mere stranger, or wrongdoer has. And so in trespass, if he destroys the title the deft. sets up. Third. When the plt. merely complains of an injury to his own land, as that the deft. overflowed it by his mill &c., as in Jackson v. Mordaunt, above, the plt. may state his title or only his possession; for the injury is direct to his estate in his possession, for years or otherwise, and he claims nothing in the deft's. estate, and possession alone of land entitles the plt. to complain of an illegal act done to it. Fourth. When the plt. claims an easement in the deft's. estate, it is not enough for the plt. to shew he is seized in fee of his own estate or land; for this he may be, and yet have no right, interest, or easement in the deft's. estate or land; but he must by prescription, grant, or agreement, shew how he, the plt., is entitled to this right, interest, or easement, in the deft's. land. It is a limited special interest, derived out of the land of the deft., and must be stated, as an estate tail, or other lesser estate must be, which is derived out of the fee simple. 5. If the plt. and his ancestors, or the plt. and those whose estate he has, once had an ancient or prescriptive right to any such easement, but no possession or use thereof for sixty years before the action brought, the right is gone; for by the act of limitations of real actions, passed July 4, 1786, no man shall make prescription to any hereditaments &c. beyond sixty years. But quære if sixty years' possession of such easement gives a title to it. See post, Ways, also Nusance; now forty years in certain cases, Mass. Act, March 2, 1808. 7. A stated in his declaration, that he had a mill on his Aldred's case. land by prescription, and the deft. erected a mill on his land, -1 Bac. 54. by which the plt's. mill was injured, by having the water Mass, Act, July 4, 1786. 9 Co. 58, 59, 2 Saund. 115, Croyton v. stopped. Held, the action lies; so it does if the deft's. mill draw away the water, or if his mill throw too great a quantity of water upon the plt's. mill, by reason of which it cannot grind so much as it used to do, this action on the case lies. 8. So one by prescription may be entitled to have all the Lethebye. corn of the tenants of such a place ground at his mill, and if F. N. B. 184. any of them grind elsewhere, case lies. 2 Esp. 431, and Willes' Reports 654, Drake's case. CH. 71. 292. 9. But if one set up a new mill in the neighbourhood of an ancient one, an action will not lie, though a damage may 2 Esp. 432.accrue, for it is sine injuriâ. Ancient here should be omitted, 1 Com. D. and see the authorities, 1 Com. D. 292, where it is stated that the action on the case lies, if a man erect a mill so near my ancient mill, that the water running to it is diverted or obstructed. 10. The case states that the plt. on ed of certain water corn-mills in was possess- Dougl. 218, "and by reason Cort v. Birk thereof was entitled to the toll and multure of all corn, grain, and malt, ground at those mills, that during all the time of his possession, all the tenants, inhabitants, and residents within the said manor ought to have ground, and still ought to grind all their corn, grain, and malt, which by them or any of them had been or should be used or spent, ground within the manor at the plt's. mills, and not elsewhere;" to pay the plt. certain reasonable toll, or not to use in the manor any corn &c., ground elsewhere than at the plt's. mills. That the tenant was an inhabtant and resident &c., and did, knowingly use corn ground in the manor, elsewhere than at the plt's. mills, whereby he was injured in the profits of his mill &c. and lost toll &c., which would come to him &c. Plea, not guilty. The evidence was, that the deft. used American flour, and demurrer to the evidence; the objection was, that this custom as laid was bad; for by it the said inhabitants could not use even flour or meal given to them, not ground at the plt's. mills. But the court decided, that the custom was good, and judgment for the plt. ; nor, according to the note, p. 18, was it necessary to be said the inhabitants had &c. immemorially used &c., or to be laid as an ancient mill. beck.-Regisfer 153. Com. D. 281, cites Mod. 897. Walsh v. § 11. In this action too it was decided, that an action on Hob. 6, the case lies for grinding corn at other mills contrary to the cus- Wray.tom, but not for not grinding at my mill corn sold, or all corn 1 Com. D. used in my house, for then I cannot use any corn that is not 281. ground. from 6 East § 12. In this case Lord Ellenborough said, independently 3 Selw. 973, of any particular enjoyment which another has been used to Beasley v. have, "every person is entitled to the benefit of a flow of wa- Shaw, cited ter in his own land without diminution or alteration; but an 214, there 208 adverse right may exist, founded on the occupation of another, to 219. and although the stream be either diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking or using it, hath existed for so long a time as may raise the presump CH. 71. Art. 3. 1 Com. D. 297.-4 Co. tion of a grant, the other party whose land is below must take the stream subject to such adverse right. Twenty years' exclusive enjoyment of the water in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of parliament. But less than twenty years' enjoyment may or may not afford such a presumption, accordingly as it is attended with circumstances to support or rebut the right." The other justices agreed. In this case the defts. in 1724, appropriated to their use a part of a stream running out of the river Iswell, and quietly enjoyed this part sixty-three years, and till 1787, by means of their canal, which took their water from this stream above a bend in it, and returned it to it below. In 1787, the plt. set up buildings for the use of his trade on the bend of the stream, and appropriated the surplus water of the stream, and leaving the defts. as much as they had used; this it was held the plt. had a right to do. In 1791, the defts. enlarged their sluices &c. and took more of the water of the stream than they had before; plt. sued them in 1802, for drawing away a part of his water, and recovered; for quoad this surplus, his possession was older and better than theirs, as he appropriated this surplus as in a state of nature four years sooner than they did. ART. 3. Remedies. § 1. When the plt. is possessed of the soil, and a wrong is done directly to the estate, he may have trespass, but generally where the deft. so disturbs the plt. in his stream, or watercourse, or watering place, as to occasion consequential damages, case is the proper action in all cases where the deft. does the original act on his own land, as in Vernon v. Goodrich, Brown v. Best, Broome v. Mordaunt, &c. and a damage thereby after arises to the plt., and see chapter 1, art. 2; 1 Wils. 174, Amer. Precedents 196, declarations in case for overflowing the plt's. meadow by a sluice. So in case for turning the plt's. ancient stream in this State, p. 196. So in case for overflowing the plt's. meadow by a mill in this State, p. 197. And in subsequent articles in this chapter, as Minot v. Wheeler, Pearson v. Tenny, Peabody v. Hobbs, Bent v. Wheeler, Buckman v. Tufts, &c. all cases tried in our courts; also Cort v. Birkbeck, form of the declaration, Walsh v. Wray, Harbin v. Green, Am. Pr. 154, Part owners v. Part owners for mill repairs. § 2. The plt. in his declaration must state a title to the 86.-1 Wils. thing to which the nusance is done, at the time done, and the prejudice by a diversion of his stream &c.; but a seizin in land is good, or possession, so that his house or mill is antiqua or erected anciently. 175. Ld. Raym. 1568, Hoare v. Dickinson, 3. So if the plt. declares the deft. maliciously continued, and caused to run a watercourse near the plt's. foundation, cited 1 Com. D. 297. |