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DISTRICT OF MASSACHUSETTS, TO WIT:
District Clerk's Office. Be it remembered. That on the twenty-third day of October, A. D. 1823, and in the torty-eighth year of the Independence of the United States of America, Nathan Dane, of the said district, has deposited in this office the title of a book, the right whereof he claims as author, in the words following, to wit :
A General Abridgment and Digest of American Law, with occasional Notes and Comments. By Nathan Dane, LL. D. Counsellor at Law. In eight volumes.”
In contormity t the act of the Congress of the United States, entitled, “ An act for the enc acement of learning, by securing the copies of maps, charts, and books to the authors and prietors of such copies, during the times therein mentioned ;" and also to an act, entitled. 6 act, supplementary to an act, entitled, An act for the encouragement of learning, by securing copies of maps, charts, and books to the authors and proprietors of such copies, during the t therein mentioned, and extending the benefits thereof to the arts of designing, engraving, and etch historical and other prints,"
JOHN W. DAVIS,
CASE ON TORTS. AS TO MILLS, LANDS FLOWED, WATERING
ART. 1. GENERAL PRINCIPLES. $ 1. This action on Forms of Dethe case lies in numerous cases, in regard to lands flowed, cla
". Pleas, &c. mills, mill-streams, watering-places, and watercourses. In 7 Wentw. these we have much valuable property, of a mixed nature. 360 to 354, The person who owns the waters, usually owns the soil under 102
to 21, refers them, but not always; for sometimes one man owns the soil, to many, in the bed of the river or stream, or water, and another by a sundry En.
glish authors. grant or by prescription, which supposes a grant, has a right American to the water, or to the fish, &c. in it, or to both.
Precedents $ 2. The right of soil in rivers and arms of the sea has 204, &c. been already considered, in Ch. 68. The right of soil in lands flowed, watering-places, &c. depends, like the right of soil in other lands, on deeds, wills, long possession, and records. Hence, this right very naturally falls under the heads, titles to lande, and conveyances of lands. The right to fish in streams, &c. so far as it respects the action on the case, has been already considered in the same chapter. The rights, therefore, to be considered in this chapter, are the rights to these waters, mill-sites, and places, and of part-owners in mills, by common law, and especially by our State statutes, so far as such rights come in question in this action on the case.
5 3. The subject naturally directs the course of inquiry, which is, as to the nature of this species of property, the ple’s. right to it, the injury to his right, and the remedy.
Ch. 71. 84. The nature of these kinds of property. Water is not Art. 1. of a nature to be demanded in a writ by the name of water ;
but the demand must be of so many acres of land covered Co. Lit. 4, with water. But such is the nature of a watering-place, that Challoner v. “ every inbabitant of a town may have an action on the case, 2 Esp. 128.— for disturbing a customary watering-place, otherwise he should Co. Lit. 56.— be without remedy.” So the inhabitants of a parish may pre
_ scribe for a watering-place, though it is only the water that is Yelv. 143.3 Salk. 278. of any use to them, of which, being fluctuating, no possession Cro. Car. 492. can be given in ejectment. -2 Esp. 128. Cro. El. 644, :
§ 5. And Croke agrees with Coke, that a customary waterFineux v. ing-place is of such a nature, that every inhabitant of a town Hoveden, may have such a right to it, or to the water there, that he may Westbury v. have case for disturbing him in it. He cites the case of Powell.
Westbury v. Powell, where the "inhabitants of Southwark had a common watering-place, and the deft. stopped it. The plt., being an inhabitant there, brought his action on the case, and adjudged maintainable. Commonwealth v. Manning, also,
below. Mass. S. J. $ 6. In this case, the court decided, that if the owner of Court, July land by a fresh water river, sell the land to the river, the 1799, Mayo
stream and mill-site to the middle of the river may be deemCumberland. ed appurtenances. Hence a mill site is of a nature to be
granted by itself; for it is land on which a mill may be placed; or to be granted as appurtenant to the land adjoining the river, as the stream may. The principle is clear, that he who owns the lands on both sides of a fresh water river, primâ facie owns the river or stream, including the bed, and all mill-sites in it. And if he own only the land on one side, then to the middle, as above stated, in Mayo v. Quinby. And the mill-site being fixed, is held by a grant, Jike any other land; but as the subject or the thing, appurtenant, as in that case. But the river, stream, or water being fiuctuating, and incapable of any fixed possession, may be claimed in different manners by him who does not own the adjoining lands, as in the following cases.
57. The plt. must state and prove a title to the water, where he claims it through another's land. For to claim water in, or running through another's land, is claiming a benefit or an easement in another's land, which is primâ facie against common right; for the law can never suppose I have a right in another's land, until I specially state and prove that right.
$ 8. In this case, Vernon, in her declaration, stated that 1 Stra. 5, 6,
she was possessed of a house in Ipswich, to which water was Vernon v. conveyed by a leaden pipe, from the conduit-house; and that Goodrich.
the deft. placed stop-cocks in said pipe, and thereby hindered the water from coming to the plu's. house, and diverted great quantities of it, whereby she lost the use of her house. The C# 71. deft. pleaded that at the time when, and long before, he was Art. 1. seized in fee of half an acre of land, being his garden, and lying between the conduit-house and the plt's. house ; and being so seized, he placed said pipe in his garden for his own use, and fixed said stop-cocks, as he might lawfully do, which is the same trespass. The plt. demurred, and the deft. joined in demurrer.
$ 9. And the court said, “ the wrong is stopping the water, and the carrying away is only aggravation ; that the declaration is upon a possession, which is good only against a wrongdoer; and therefore the plt. must shew a title ; the deft. claims the soil out of which the plt. claims an easement, and therefore she must shew a title," and set it out in her declaration.
$ 10. Here the water on the deft's. land, primâ facie, belonged to him ; and if the plt. would have it, she was bound by law, to state and prove her right to it, specially. This principle runs through every case, where one claims water or any easement whatever, in the land of another. But a bare possession of the easement, is sufficient against a mere wrongdoer ; for it is a better right than his, who has none at all. But this possession never can be good against the owner of the soil. But the plt's. possession in trespass is good, if he defeat the deft's title set up. 2 Esp. 99, 100; Cro. El. 288, Fenner v. Fisher. p11. Changing mills does not change the nature of the 1.Co
Luttrel's estate in them, and in the mill-stream. As where the decla- case. ration was for diverting the ple's stream to his inill. Plea not guilty. The case states, that the plt. was seized of two ancient and ruinous fulling mills, turned by such a stream time out of mind, and pulled them down, and in their place built two grist mills, which the said river turned ; and that the defts. by breaking down bis bank, diverted his stream. It was objected that the plt. had a prescriptive right or grant for his fulling mills; and that he could not pull them down, and build grist mills in their place, within his supposed grant or prescriptive right. But the court held that he could, and gave judgment for the plt. ; for it is within the prescription to pull down an old mill, and to build another of the same kind, in the same place; or of a different kind, if he do not alter the water-course, and the mills are the same in law, and according to the register. And F. N. B. the plt. may demand his mill, without saying what mill. And the plt. might well claim a great part of the water, for it was impossible to tell what part; and the quantity was not material ; and the charge was diverting water that run to the plt's. mills.