Statement of the Case. HAIGHT V. PRICE. Presumption.-Burden of Proof. The diversion of a water-course, in the absence of affirmative evidence to the contrary, is presumed to be in hostility to the rights of the reputed owners; and no acquiscence, short of twenty years, will repel such presumption, nor authorize the presumption either of grant or license. * In an action for damages for the diversion of a water-course, a lawful erection by the plaintiff upon his own land, calculated [* 242 to lessen the injury, but which, in fact, added to it, is no defence, if it would have occasioned no damage, had the channel remained in its natural condition. APPEAL from the general term of the Supreme Court, where judgment was affirmed upon a verdict in favor of the plaintiff. This was an action to recover damages for diverting the water of a stream, called Trout run, in Arcadia, Wayne county, by means of a mill-dam, whereby the plaintiff was deprived of the use of the water for his brick-yard, at a point lower down the stream. run. *The plaintiff's brick-yard had been in opera* [ 243 tion for the manufacture of brick, from about the year 1832, and had been supplied with water from Trout In 1836, the defendant erected a grist-mill, higher up the stream, and built a dam, which diverted the water partially from the plaintiff's brick-yard. To obviate the injury to some extent, the defendant constructed an aqueduct on his own land, which conducted the surplus water from his works into the old channel; and for the purpose of retaining the water, the plaintiff excavated a basin in his channel, and threw a slight dam across it, a short distance below. In March 1852, the banks of the stream at each end of the aqueduct were washed away, Opinion of the Court, per DENIO, J. and all the water was conducted from the plaintiff's premises. The defendant contended, and gave evidence tending to show, that the carrying away of the aqueduct was caused by the operation of the plaintiff's dam, in * 244 ] setting back the water of the stream. *The judge charged the jury, that there was no evidence to raise the presumption of a grant or license to the defendant to divert the waters of the stream; and that though the plaintiff's dam might have contributed to the carrying away of the aqueduct, it was no defence, unless maintained at such a height that it would have occasioned the injury, if the stream had remained in its natural state. The defendant's counsel excepted to the charge, and there having been a verdict and judgment in favor of the plaintiff, which was affirmed at general term, the defendant appealed to this court. Selden, for the appellant. Clark, for the respondent. DENIO, J.-The plaintiff's possession of the land on which his brick-yard was situated, and through which the * 245 ] water-course *ran, was primâ facie evidence of ownership in him. As such owner, he was presumptively entitled to have the stream run in its natural channel, without obstruction or diversion. It is true, that when he went into possession, he found that the water had been diverted by the defendant's dam above; and it is to be inferred, that such diversion had been acquiesced in by the parties who had preceded him in the possession, and such acquiescence was continued on his part, until the commencement of this action. But the whole period, during which the several successive proprietors forebore to assert their right to have the water returned to its natural channel, was not sufficient to raise the pre sumption of a title so to divert it. Opinion of the Court, per DENIO, J. But the plaintiff did not show any privity between himself and the former possessors, nor explain how it happened, that the defendant was permitted to make the diversion, at the time it was first effected, some twelve or thirteen years before the plaintiff went into possession ; and hence, it is averred by the defendant's counsel, that the jury might have presumed, if the question had been submitted to them, that the defendant was himself at that time the owner of the premises now possessed by the plaintiff, in which case, he would have had a right to divert the water, as there would have been no one entitled to object; and if the plaintiff subsequently took title under him, he would have held in subordination to the defendant's right to continue the diversion. It is urged, that this presumption should attach, in the absence of any proof to the contrary, because the plaintiff holds the affirmative in this action, and because, moreover, everything must be deemed to have been rightfully and lawfully done, unless the contrary be shown. This reasoning is not satisfactory to my mind. Assuming that the defendant's ownership of both parcels, at the time he diverted the stream from the lower one, would have concluded his subsequent grantee of that parcel, the suggested unity of ownership was a fact, which the defendant was bound to prove on his own part. The diversion was prima facie a wrong, and though in its nature it was capable of excuse or justification, by proof of the existence of other facts which would render it lawful, the burden of showing the *existence of such facts [ * 246 was upon the defendant. It is as easy to suppose that the person who owned the brick-kiln lot, when the defendant's mill was built, granted to the defendant the right to divert the water, as to conjecture that the diversion was a lawful act, on account of the ownership at that time of both parcels in the defendant; and yet, it is clear, that a jury would not be authorized to find a grant upon the evidence in this case. Opinion of the Court, per DENIO, J. No doubt, there is an inference of some weight, arising out of an acquiescence in such an act for a considerable length of time, short of the period of prescription, that a justification of some sort existed; but the law, upon motives of policy, and to avoid uncertainty and the hazard of contradictory determination, has fixed upon the period of twenty years as the shortest time for admitting the presumption of a grant. Where a diversion has not continued for that period, it is considered hostile to the rights of the parties entitled to have the steam run in its natural channel. Stress is laid upon the circumstance that the plaintiff has not connected himself with the title of the party in possession when the diversion took place; and we are, in effect, asked to intend from this, that the then owner was a stranger to the plaintiff's title, but that he, in some legal manner, consented to the act of the defendant. But as the plaintiff's possession entitled him to be considered the owner, the legal intendment is, that he derived his title from some former owner. If he was an intruder upon the lands of another person, and that other, or his predecessor in the title, had granted the right to divert the water to the defendant, these being affirmative positions, it was for the defendant to prove their existence on his own part. The circumstance, that the plaintiff and his predecessors in the possession had received the diminished supply of water for nearly twenty years, did not legally tend to show a license; for if the deprivation had been total, it would not have had that effect. The same may be said of the evidence that the plaintiff took down his dam, in time of high water; he had no right to keep up such an obstruction, at such a time, if it tended to overflow the lands of the proprietors on the stream above. * 247 ]*Upon the whole, this seems to me the common case of an unlawful diversion of water for a period a little short of that which would enable the jury to pre Opinion of the Court, per DENIO, J., sume a consent, and that it would have been erroneous to submit it to the jury to find either a grant or license.' The other branch of the charge was also correct. The aqueduct was an artificial structure erected by the defendant to enable him to divert the principal part of the water of the stream, and yet to conduct the remainder down the natural bed of the stream. The plaintiff had a right to have the whole stream pass that point of its course in its natural bed, and he did no wrong to any one, in erecting a dam on his own land below, provided it was such a one as would not have caused any injury to the defendant, provided he had not interfered with the natural channel. This was the aspect in which the judge submitted the case. The judgment must be affirmed. Judgment affirmed. 1See Stillman v. White Rock Manufacturing Co., 3 W. & M. 539. Beidelman v. Foulk, 5 Watts 308. |