
    
      John Shumway, vs. Joel Simons.
    
    Presumptive rights, acquired by long use and enjoymént, are inalagous to those - arising under the statute of limitations ; and the use and enjoyment must be adverse and uninteirupted for'the period limited by the statute.
    If, therefore, the enjoyment of such a right has been interrupted or suspended, though not by the act of the party whose private interest was affected, such right will not become perfected ; especially if, during the seasons of interruption, the owner of the property affected, resumes the use and enjoyment of it.
    The doctrine of presumptive rights, is applicable to cases for which the statute has not provided.
    This cause came up upon exceptions taken before Mr. Justice HutchiNson, and the other Judges of the County Court, at the last April Term. The action was trespass on the case, for overflowing the plaintiff’s land, and was tried upon the general issue. The title of the plaintiff to the land in question, and of the defendant to the sawmill, dam, and mill privileges, by which the al- • leged injury was occasioned, were admitted on trial. The dam of which the plaintiff complained, was erected across the outlet of •a pond in Wells, adjoining the plaintiff’s land, and the injury consisted in causing the waters to rise above their accustomed leve^ and flow back upon the surrounding lands. The defence rested . upon a presumptive right to overflow the land, arising from a long use of that easement.
    
    The defendant introduced evidence tending to show, that the first sawmill and dam were erected at this place, in 1774, and occupied .. till the owners were driven off by the enemy, in 1776 or 7. — That upon the establishment of peace, the mill and dam were repaired and occupied till 1792, when the waters were let off for the benefit of a mill below: — that within a year or two after this, Elkanah ■ Cobb, erected another mill and dam, which raised the waters of the pond higher than at present: — that the flooding of the land being deemed injurious to health, this dam was pulled down by the inhabitants of Wells — that it was afterwards rebuilt by Cobb, to its present height, and so remained until destroyed by fire, in 1797 or 8: — that in Í805, Wm. Potter deriving title under Cobb’s estate, erected another mill and dam, (the latter of equal height as the one last aforesaid) which was kept up and occupied constantly, as business required, until the defendant purchased of Potter, iu 1817, with an esc-ception of only two or three years, when the dam was kept up partially, between the months of May and October : — that ever since die defendant’s purchase, he had used and kept up the dam to its present height, and that, in 1820, he erected a new dam of the same height as the one preceding.
    To rebut this,evidence,the plaintiff produced evidence tending to prove,that under .a certain act of the Legislature,passed in 1806,for the purpose of lowering the waters of this pond for the preservation of health, the select men of Wells, had annually .about the 1st day of May, for several years, from 1807 to 1813, raised the waste gates or pulled up a part of the dam to. let off the water. And that in this way, they had sometimes reduced the pond to its natural level, by about the 1st of June $ but in many instances the gates, after a few days, were again shut by occupiers of the mill, who continued business while the water lasted:
    ' — that the plaintiff, and those under whom he claims, had cut hay upon the land in question, at various times, for forty years ; and about twenty-five years ago, had drawn timber upon it, and fenced it to keep cattle from it; and that it was mowed nearly every year, except 1816, when it was pastured, till 1818? since which time, and especially after the defendant’s present dam was erected, the land had been constantly overflowed, so that all use of it by the plaintiff, had been lost.
    The defendant contended, and requested the court to charge the jury, that if the defendant and those under whom he claimed, had, for fifteen years kept up the dam to its present height, it was evidence from which a grant or title to the easement should now be presumed ; and that such presumption was not affected by the occasional suspensions or interruptions in the exercise of the right? as appearing in evidence, because they were not occasioned by any prohibition or interference of the plaintiff, but by the act of the select men, in preservation of health, or other sufficient causes wholly disconnected with any private right of the plaintiff The court refused to charge as requested, and instructed the jury to the following effect: — “ That by analogy to the statute limitations, a presumptive right or easement, like the one set up by the defendant, might bé acquired by the uninterrupted enjoyment of that right' fifteen years. Rut it m'ust be' an uninterrupted enjoyment; for the acquisition' of sdch a right is founded in the* presuinption of a gralñt ffóm the person affected by the enjoyment of it. If the right has not been thus enjoyed, it mates no difference whether the defendant Was prevented or interrupted in the enjoyment by the interference of the selectmen, or of the plaintiff himself. If the right had been previously acquired, the- defendant would not be' considered as abandoning die right, by yielding to the interference of the selectmen. But if in fact the pond had been so drawn off from year tor year, that die plaintiff had mowed and pastured his land, he Could not be presumed to havé granted the right of keeping this land constantly flooded. If the jury should find, that the defeádant and those under whom he claims have enjoyed the right Without in-' terruption, for fifteen yeárs before-this action commenced, of flowing this land to the same' extent to which it has been flowed since-the defendant’s last dam was erected, they should return a verdict for tiie defendant. But if they found that the land was formerly capable of being mowed and pastured, until the erection of the defendant’s present'dam, and that since that erection it had remáin-éd so constantly covered with water as to be no longer- capable of such cultivation, their Verdict should be for the plaintiff.” The' jury having found for the plaintiff, the cause was passed to this court for a hearing of-legal questions arising in the trial!
    
      Langdon and Kellogg,for the defendant, contended that the suspension in the use of the mill and dam, occasioned By the revolutionary War, did not effect the presumptive right now claimed by the defendant, and; that right became perfect in 1790, 2d. That if they were mistaken in this, yet that the right Becamep'er-feet in I80S, being fifteen years from the rebuilding of the works after the war. — 3. That dating from ISO'S, when Potter rebuilt, the right was consummated’ several years before’ the commencement of this action: — 2- Sélw. JV. P. 1-090 — 3 East, 300-2 — 1 E. & P. 400. — 2‘ Con: R. 590-2 and 610; It does not' appear that the plaintiff, or any othér occupant'of the land in question,, ever resisted or complained of the easement. The only interruptions pretended áre those occasioned by the select men, acting under a' statute- enacted for the preservation of-health, and- not for the relief of the plaintiff from any encroachment upon! his land. The select men must have done the same, though the plaintiff had been owner of the mill and dam, as well as the land. But the act of strangers cannot enure to the benefit of the plaintiff, who has slept upon his rights more than fifteen years. — Fonbl. Eq. 319. — 1 Sw. Dig. 119. — 7 Wheat. Í 05-6-7..
    
      Clark, for the plaintiff. A claim of the kind set up by the defendant is analagous to a right acquired under the statute of limitations, and therefore requires an uninterrupted possession or use of the privilege for fifteen years. It goes upon the ground that the person who sustains the injury by such an encroachment upon his land, would not lie by for any entire period of fifteen years, without resistance or bringing an action.
   Royce, J.

delivered the opinion of the court. — It seems to have been submitted to the jury in this case to find from the evidence, whether, for fifteen years before the commencement of the action, the plaintiff’s land had been overflowed, by the means complained of in the declaration, to the same extent as for the period since the erection of the defendant’s present dam; and also whether the overflowing of the land had been continued for any period of fifteen years, without interruption. Their verdict must be taken to have settled both these questions in the negative.As an answer to the first part of this finding,the defendant relies upon the fact asserted at the trial, that his present dam is not higher than any one which preceeded it; and to the second, that the interruptions to the exercise of the right claimed were not of such a character as would prevent a consummation of the right. Admitting the first assertion to be true, we have then to account for the increased detriment to the plaintiff’s land, which could only result from a better construction of the present dam; thereby causing a more complete obstruction of the water. In principle, it must be equal in all respects, whether an inconvenience is suffered from a more perfect refiting of an ancient dam, or from an obstruction wholly new; yet in practice it is easy to perceive that such a rule of decision is exposed to much -embarrassment in its application. If the dam remains of the accustomed and proper height, the additional injury produced by rendering it more compact and impervious to ¡the water, should be permanent, manifest and ¡indisputable.. And ’if, as the plaintiff under-took to prove -on trial, the land in question was for many years 0Cr cupiéd as a meadow or pasture,'but ever-since the building of the present dam -had been so -flooded that the grass had-ceased'to grow -upon it, this is .a case .of that decisive character for -which' a remedy may be had by action. .

Clark, for plaintiff.

Langdon, for defendant.

Upon the -other -point., die court would now -confirm the suggestion-of the judgemade at the trial, that the modern doctrine of presumption is founded .in analogy to the statute of limitations.-^It is applicable -to cases .for which .the statute has not provided.— And the evidence-in .support-of a presumptive right, must at least be sufficient to have .established-the legal right, provided the statute had extended to the case in judgment. That the interruptions shown in .this .case would prevent the acquisition ,of a tille under the statute can admit of no .doubt. They furnish evidence of a kind of alternate occupation by these parties of the property in question; and this for many obvious reasons .could never satisfy the statute. The argument for-the defendant seems ,to amount to -.this; — that the .plaintiff must have known the .right was claimed and would ¡fee persisted in, and having omitted for such a length .of time to make resistance or bring an action, he ,is now concluded to deny .the right, .nothwithstanding its exerpise may .have .been often .interrupted or ¡suspended by other persons. If during the seasons of-interruption, the .plaintiff in submission to an .alleged right of ¡the defendant, had fprborne to enjoy-the land, .there jnight be weight in this argument; hut as the fact was otherwise;, .the doctrine held at the trial must be supported, .Judgment is .therefore -entered on fthe verdict.  