
    Townsend and others against McDonald
    Where hydraulic privileges are created by conducting a stream across lands in an artificial channel, the proprietors of lots crossed by the artificial channel, in the absence of any stipulation to the contrary, have the same rights to the use of the water on their respective lots as between themselves, as would exist if the artificial were the natural channel of the stream.
    A party acquires a right to the use of water in a particular manner, by a uninterrupted adverse enjoyment of such use during twenty years.
    
      But an omission by the owner during twenty years to make use of water right» does not impair his title or confer any right thereto upon another. It is not the non-user by the owner, but the adverse enjoyment by another during twenty years which destroys his right.
    Appeal from a j udgment of the supreme court in the 3d district. The plaintiffs, Townsend and others, filed their bill of complaint in the court of chancery, in 1846 ; the general object of the bill was to enjoin the defendant perpetually from continuing a bulk-head, which he had then recently erected upon a certain mill lot, number one, owned by him, whereby the water in a certain artificial channel was, as alleged, set back upon and thereby obstructed the use of a water-wheel of the plaintiffs, appertaining to their' flouring mill erected upon the same channel upon lot number two, owned by the plaintiffs, which was situated above and easterly of the defendant’s lot number one. , The bill sets forth the respective title of the parties to these lots and to the usé of the water, substantially as hereinafter mentioned ; that a mill has existed upon the plaintiffs’ lot more than seventy years last past, and been maintained by the plaintiffs and their predecessors in the title, which has been propelled by the water of the artificial channel, and which water has been discharged from the plaintiffs’ .upon the defendant’s lot by means of a tail race, which has not, during that time, been made lower than it was when first constructed; and that the water-wheel of the plaintiffs’ mill, at the time of the commencement of the suit, was not set as low as the former water-wheels of the mill on that site had been. It also states that a mill was erected upon the defendant’s lot, in 1815, by a person under whom the defendant claims, which has been continued since that time until about six months before filing the bill, when it was burned down, and which was operated by the water discharged from the plaintiffs’ lot and, passing thence to said defendant’s mill through the said artificial channel, without being thrown back upon the water-wheel on said lot number two, or in any way obstructing or retarding the said wheel,” or the operations of the mill on the plaintiffs’ lot; that while the said mill, erected on the defendant’s lot in 1815, remained standing, the water by which it was operated was never set back beyond the east line of the defendant’s lot, but that the fall of water by which the said mill was operated, was derived wholly from the natural declivity of the ground west of the lot of the plaintiffs ; that after the destruction by fire of the mill last mentioned, the defendant, who has lately and within six months before the commencement of the suit purchased the lot, has erected another mill upon the site of the former one, and has constructed a bulk-head across the artificial channel, of greater height by three or four feet than any before constructed on that lot, with intent to raise the water and set the same back upon the plaintiffs’ lot and upon the water-wheel of their mill, and has also repaired and raised the banks of the pond above the bulk-head ; whereby, as the plaintiffs insist, the water will be raised higher than it has ever before been raised, by about two feet and six inches, and will be set back into the tail race and upon the wheel of the plaintiffs’ flouring mill and upon certain elevators which revolve under the mill, by which they will be impeded and retarded and rendered incapable of performing the work they have heretofore done and would otherwise be capable of doing.
    The answer of the defendant states the particulars of the title to the lots and water power, not varying substantially from the statements in the bill. Of the other matters alleged in the answer, it is only necessary to state the following positions, viz: That the plaintiffs, when they were about purchasing their lot, procured a survey of the same to be made, and two monuments to be placed upon the boundary line between the two lots indicating truly and accurately the natural level or surface of the plaintiffs’ lot at the boundary line; and the defendant denies that he has ever, by any erections on his lot, set the water back as high as the top of these monuments or the level between the two lots; that the plaintiffs, since their purchase, and within twenty years, have sunk their water-wheel eighteen inches lower than any wheel before used for the mill on that site, and that they have, deepened the tail race within 'the last five years. The defendant admits rebuilding the mill on his lot shortly before the commencement of the suit, and constructing a dam across the artificial channel about eight inches higher than any previous dam, but he alleges that it is not yet sufficiently high to raise the water to the surface of the ground at the division line between the two lots. He admits that it will set the water up upon the plaintiffs’ wheel as it now stands, but this, he alleges, is solely attributable to the fact that the plaintiffs’ wheel is placed lower than the surface of the ground on the plaintiffs’ lot, and lower than it was until within eleven or twelve years last past; and he denies the right of the plaintiffs to lower or deepen their water-wheel or tail race (except at the peril of being overflown) below the natural surface of the plaintiffs’ lot at its lowest point on the division line between the two lots. The plaintiffs filed a replication, and the cause was referred to Deodatus Wright, Esq., as sole referee, to hear the proofs and allegations of the parties, and to decide the matters in controversy, with leave to either party who might be dissatisfied, to bring the matters before the court on a case.
    The referee reported a statement of facts, of which the following is the substance of the material parts : Prior to the year 1813, three persons named Aikin, Goodman, and Dickinson, were the owners of a parcel of land in Greenbush, situated on both sides of the stream of water in question; and having divided a portion of it into small lots, they made partition of it among themselves, according to a map which is annexed to the report. Six lots were laid out adjoining each other and abutting on the stream on the south side, and lying upon land which descended with the stream towards the west, and were intended for mill seats; and they were numbered, commencing with the lower lot, from one to six, inclusive. Number one was allotted to Aikin, and number two to Dickinson. The others were also allotted, each party having two lots in all. There was a dam, which had been erected before the partition, across the stream above these lots, making a pond from which the water was conducted across the lots by an artificial channel, taking a course nearly parallel with the natural channel of the stream. The three proprietors released and conveyed to each other according to the partition, and “mutually covenanted and agreed with each other that each, his heirs and assigns, should bear and pay his just proportion of the costs and expenses which might from time to time be necessarily incurred for erecting, building, repairing, sustaining and supporting a good and sufficient dam across the creek or stream aforesaid, and represented on the said map at the point designated by the said dam ; which said expense was to be borne and paid by each of said parties in the ratio and according to the relative value of the different kinds of machinery which should or might be constructed or erected on any of said mill lotsand they further covenanted and agreed to and with each other, that “ neither of the parties, their heirs or assigns, could or should in any manner waste or obstruct or divert the water of said- creek, which was not necessarily used or expended for putting or keeping in operation the mills or machinery erected or to be erected on any of the said lots; and that neither party, his heirs' or assigns, should or would so appropriate or use the water of said creek to put or keep in operation any mills or other machinery erected or to be erected on any of the said lots designated on the aforesaid map, so as to deprive any other party owning or occupying any of said lots of a just or reasonable participation in the use of the water of said creek for mills or machinery which were or might be erected thereon.” The plaintiffs were seized of lot number two under mesne conveyances from Dickinson, and the defendant of rot number one under mesne conveyances from Aikin; the several deeds recognizing the rights of the parties as derived from the partition, but that from Aikin to his immediate grantee in terms conveyed the right to twenty- one feet clear fall of water. There was a flouring mill on lot number two at the time of the partition, driven by water brought down in the artificial channel, which has been continued down to the present time (having been several times rebuilt) in the use of the parties owning the lot under the title which the plaintiffs now hold; and the water has always passed from their water-wheel and been discharged uninterruptedly by means of a tail race upon lot number one, “without being retarded or thrown back by any bulk-head or other obstruction connected with any mill erected on said lot .number one.” In 1824, the plaintiffs, who then owned lot number two, employed a surveyor to ascertain the surface or level of the ground between lots number one and two, which surface was marked by them by means of an iron bolt driven into the ground on the, division line between the two lots, the top of which bolt indicated the surface or level of the ground between them. The plaintiffs’ water-wheel, as it stood at the commencement of this suit, was The feet below the top of the iron bolt, and the bottom of plaintiffs’’" water-wheel is below the surface of the ground at the division line between the two lots. The fall of water on the two lots, taking the bottom of the water-wheel as the level at that place, would be 23 AA feet for the plaintiffs’ lot, and 20-nrV feet for the defendant’s. A flouring mill was erected on the defendant’s lot by the then proprietor thereof in 1815, which was continued in use until 1846, when it was burned. The defendant rebuilt it previous to the commencement of this suit, constructing a new-bulk head and other obstructions on his lot number one, which raised the water higher in the channel above than it had ever been raised by any prior erection on that lot. The conclusion of the referee’s report was as follows:
    “ Questions of fact are raised by the pleadings, and testimony has been introduced by both parties in relation to points which, according to the. view I have taken of the case, I have not considered it necessary to decide.
    “ Evidence was introduced by the defendant tending to show that the artificial race way, through which the water was conducted through lot number two, and was discharged on to lot number one, had been excavated and deepened, and the plaintiffs’ water-wheel lowered within twenty years. The plaintiffs introduced testimony tending to prove the contrary on these points; but as my decision is placed entirely upon the grounds hereafter stated, I have not considered these questions. I do not decide either way upon the question whether the water-wheels, that have from time to time been put into the plaintiffs’ mill on lot number two, have been placed nearer to or further from the surface of the ground in the race way, than the wheels whose place they were put in to supply. I do not decide either way upon the question whether the race way, which • now does or has for more than thirty years previous to the commencement of this suit, conducted the water from the water-wheel in the mill on lot number two across and on to said lot number one, has become deeper and its bottom lowered within twenty years last past, or since it was first used and dug for that purpose.
    “ I do find and decide as a fact that the bulk-head and obstructions aforesaid, erected and constructed on lot number one by the defendant after he became the owner thereof, and before the commencement of this suit, raised and set the water back in the race way on lot number two, and •upon the plaintiffs’ water-wheel, so as to materially and injuriously interfere with and obstruct the operation of said wheel and prevent it from moving the machinery of the flouring mill on lot number two, and put it in operation as it would have done, except for the flowing and setting back the water as aforesaid; and that the defendant thus caused said water to flow and set back as aforesaid, higher than if had been set back into the race way and on to the waterwheel on lot number two, by the owners or occupants of lot number one, or by any of them, at any time within twenty years previously to and immediately preceding the time that defendant constructed and erected the aforesaid bulkhead and other obstructions on lot number one. I do also decide and find as a fact that the bulk-head and other obstructions, erected and constructed by the defendant as aforesaid on lot number one, do not and will not flow or set the water back so as to raise it above or higher than the surface now is or was at that point when said map and partition were made in 1813.
    “ I am of opinion that the plaintiffs have acquired a right to the continued use of the water and a flow of it from their water-wheel and race way into and upon lot number one, in the same manner and at the same height it has been accustomed to flow for twenty years immediately before and up to the time of the erection of said bulk-head or obstruction ; and as I have found, as facts, that the erection of said. bulk-head and other obstructions by defendant does and will interfere with and interrupt the enjoyment of. that right, notwithstanding that said bulk-head and other obstructions will not set the water back so as to raise it any higher than the surface of the ground at the division line between lot number one and lot number two, as it now is or was in 1813, I decide in favor of the plaintiffs, and am of opinion that they are entitled to a decree perpetually enjoining and restraining the said' defendant from using said bulkhead and other obstructions in such a manner as to set or flow the water back and raise it higher in said race way upon lot number two, than it was set back or flowed and raised by the bulk-head and other obstructions on lot number one for the twenty years immediately preceding the time defendant erected the bulk-head and other obstructions hereinbefore referred to as having been erected by him.
    “ I place my decision expressly upon the ground that the uninterrupted use and enjoyment by the plaintiffs, or those under whom they claim, to discharge the water through their race way on to lot number one at a certain height for upwards of twenty years, confers upon them the right to a perpetual discharge of said water through said race way upon lot number one at the same height, and that notwithstanding the other facts proved in the case.”
    The defendant excepted to all the material points determined by the referee.
    The supreme court gave judgment upon the report of the referee, adjudging that the defendant should be perpetually enjoined from disturbing the plaintiffs in the enjoyment of their mill and machinery and from obstructing the flow and discharge of the water from their lot “ in the manner in which the same had flown and been discharged previous to the erection of the bulk-head, and other mills and obstructions complained of in the bill,” or in any manner to impair the use and enjoyment of the plaintiffs’ mill and water power, as said plaintiffs used and enjoyed it “ previous to the erection of the bulk-head and other obstructions by the defendant,” as stated in the bill; which judgment was affirmed upon an appeal to the general term, whereupon the defendant appealed to this court.
    
      John A. Collier, for the appellant.
    
      John H. Reynolds, for the respondent.
   Denio, J.

Prior to the partition of the premises which were formerly owned by Aiken, Dickinson, and Goodman, those parties were seized in common of the water course running through their lands, and of the advantages arising from the use of the water to propel mills and machinery. When they came to make partition of the lands, they at. the same time by mutual agreement changed and modified the course of the stream, or so much of it as might be usefully applied to hydraulic purposes, so as to transfer the place of applying the power from the natural channel to an artificial one, running from the dam across all the lots; and they agreed to maintain and uphold the dam, at their common expense, upon certain principles of contribution agreed upon and defined in the partition deeds. They also agreed by those instruments, that all the parties, in regard "to their respective lots, should be entitled to a just and reasonable participation in the use of the water of the creek for mills and machinery, which they might respectively construct upon such lots. The effect of this transaction was, that each proprietor thereafter became entitled to the same rights in the water running in the artificial channel, which they would have had if it had been the natural course of the creek. Indeed the object of the partition was to create a number of mill sites upon the artificial water course and to divide them among the proprietors ; and in the absence of any special agreement defining their respective proportions in the water power, the only principle upon which it. can be divided is to assign to each the proportion of the fall which is,,capable of being enjoyed upon his own lot, according to the rules which prevail among riparian proprietors whose lands lie above and below upon the same natural water course. Such, I think, is the meaning of the covenants in the deeds; and it is apparent that such has been the understanding of the proprietors. The plaintiffs acted upon this principle when they established the level between their lot and the one next below it, by means of the permanent iron monument which they caused to be set into the ground upon the division line between those lots The referee appears to have assumed the same principle, and I do not understand either of the parties, in their pleadings or in the argument before us, to dissent from this view of the case. In determining the rights of the parties to this suit, I shall therefore endeavor to apply the law which would govern the case, if the artificial channel were in fact a natural water course running through the adjoining lots of the plaintiffs and the defendant.

Assuming these data to be established, the remaining questions do not present any difficulty. Each proprietor of a lot is entitled to the benefit of the fall of the water upon his own land. He has not a right to set the water back upon the proprietor above him, nor can he lawfully dig into the soil of the proprietor below for the purpose of discharging the water upon the lot of such proprietor at a lower level on the division line than the surface of the soil in its natural state would permit. Each proprietor, in availing himself of the fall upon his own land, must take care that he does not abridge the same right existing in either of the neighboring proprietors on each side of him. These are the rights of the respective proprietors among themselves in the absence of any fact to raise the presumption of a grant from one of them to the other. But if one proprietor has, during a period of twenty years or more, possessed and used a portion of the hydraulic property belonging to another proprietor, not by license or favor, but adversely and in derogation of the rights of such other proprietor, the law, upon considerations of policy and for the purpose of quieting a long possession, will presume a grant from the proprietor thus intruded upon to the other, and will preclude the party who has thus acquiesced from asserting the right which he otherwise would have had. (Angel on Water Courses, p. 77, ed. 1833; Belknap v. Trimble, 3 Paige, 577; Smith v. Adams, 6 id., 435; Baldwin v. Calkins, 10 Wend., 577; Sackrider v. Beers, 10 John., 241.) The omisssion of one of the proprietors to make use of the right which belongs to him, and which is to be exercised on his own land, however long such omission may be continued, will not prejudice him or confer and right upon the adjoining proprietors. (Bealey v. Shaw, 6 East, 208, 214; Crooker v. Bragg, 10 Wend., 260, 266; Butz v. Ihrie, 1 Rawle, 218.) The referee in this case has found that the bulk-head recently erected by the defendant does not set the water of this stream back, so as to raise it above the surface of the ground at the division line between lots numbers one and two, either as that surface now is, or as it was at the time of the execution of the partition deeds. The defendant has, therefore, done nothing which he was not justified in doing, provided the rights which he originally had have not been lost or impaired by acquiescence in soyie encroachment by the plaintiffs or those under whom they claim. The further finding that the defendant’s new bulk-head and other obstructions have raised the water higher, and set it further back, than it had been raised or set back by any obstructions existing on that lot at any time within twenty years past, is unimportant; for if the defendant and those whose title he has, had made no obstructions, and had never availed themselves of their water rights at all, it would not have prevented his now doing so, nor would it have conferred any rights upon the plaintiffs. The real point in litigation between these parties was whether the plaintiffs had established a 'right by occupancy for twenty years or more, to discharge the water from the tail race of their mill upon the defendant’s land at a lower level than the natural surface of the earth at the point of division; or, in other words, whether the defendant had lost a portion of the fall upon his land, by acquiescence by him and his predecessors in an encroachment upon that fall by the plaintiffs. Although this point was litigated upon the pleadings and by the proofs, and so far as I can see was the only material question in the case, the referee has intentionally omitted to pass upon it. There is some obscurity in the report, but according to my understanding of it, the wrong of which the defendant is supposed to have been guilty, and from continuing which he is to be permanently enjoined, is raising the water higher than he or his predecessors in the title had ever before done ; but inasmuch as he has not now raised it so high as to set it back upon the plaintiffs’ lot in its natural state, he has, as before remarked, done no wrong to the plaintiffs, unless they have become entitled to a part of the fall on the defendant’s land by reason of an occupation for twenty years. Such occupation is not found by the referee, who seems to be of opinion that the defendant has forfeited his right to the fall by non-user. The decree which he conceives the plaintiffs entitled to, is one which shall restrain the defendant from using his bulk-head in such a manner as to set or flow the water back and raise it higher in the race way upon lot number two than it was set back or flowed and raised by the bulk-head, &c., on lot number one, for the twenty years immediately preceding the time the defendant erected the bulk-head on his lot, shortly . before the commencement of the suit. I am unable to reconcile this with the formal announcement of the ground upon which the referee states that his decision is based, which is, in effect, that the plaintiffs have a right to discharge the water from their lot on to the plaintiffs’ at the same height which they have uninterruptedly done for twenty years before the erection of the plaintiffs’ bulk-head. This last proposition accords precisely with what I conceive to be the law of the case ; but it is quite inconsistent with the prior decision of the referee in which- he holds it to be immaterial whether the plaintiffs’ water-wheel and race way are or are not now lower than they have been during a portion of the preceding twenty years. The judgment of the court actually entered establishes the title of the plaintiffs- to their works as they existed immediately prior to the erection of the new bulk-head on the defendant’s lot, and enjoins the defendant against disturbing them, when, for aught that appears, the race way may have been deepened and the wheel depressed within those twenty years to the full extent which the defendant has, by his new bulk-head raised the water in that race way.

I am of opinion that the case has not been determined upon correct legal principles, and that there should be another trial in which the fact, principally in litigation, should be passed upon.

The judgment of the supreme court should be reversed, and a new trial had before the referee, or in such other manner as that court may determine.

All the judges, except Marvin, J., concurred in the foregoing opinion and conclusion.

Marvin, J.,

delivered an opinion expressing the same views as to the law contained in the foregoing opinion; but from the referee’s report he understood him to find, as matter of fact, that the plaintiffs had" exclusively and uninterruptedly, during more than twenty years, used the water and discharged it on to the defendant’s lot, at the same level as it flowed when the latter made the erections and set the water back as complained of, and he was therefore in favor of affirming the judgment, on the' ground that the. plaintiffs by such enjoyment had acquired a right to such privilege.

Judgment reversed.  