
    
      Henry Middleton vs. Charles C. Gregorie.
    
    The proprietor of lands below, may, by prescription, acquire the right to have water, which, in its natural course, flowed through and over his lands, diverted from its natural course, and thrown back upon the lands of the proprietor above.
    
      Before Earle, J. at Beaufort, Spring Term, 1839.
    The report of his Honor, the presiding Judge, is as follows.
    “Trespass for cutting and breaking the plaintiff's dam, whereby his fields were inundated, &c. The defence was, that the dam was part of the freehold of the defendant.
    “ The lands of the plaintiff and defendant are contiguous, on the same water course; the former below, the latter above, and the stream running from the latter through the former. The relative situation of the lands will be best understood by reference to the accompanying copy of Mr. White’s survey,* which he has obligingly furnished me for the purpose of this report. That will also present the subject matter of the controversy more intelligibly. It will be perceived that the parties have there a common boundary; and that the right of the plaintiff to recover, depended on such a location of that line as would leave the dam within the plaintiff’s land, or place the dam directly on the line, constituting a part of the actual boundary ; in which case, I held it would be trespass in the defendant to cut through and break it.
    “ Several ancient surveys were introduced on both sides, to illustrate the claims -of the respective parties. These, or such of them as may be useful, will probably be brought to the view of the court. It will be perceived, that according to all of them, the dividing boundary there is a straight line. On several of these, many line trees and stations are called for, and represented. None of these are now found or identified, except a water oak station in the line represented on Mr. White’s survey ; and the remains of the red oak corner, at the eastern termination of the line, which is admitted or established to be the place where the original corner stood. The course of the line, as represented in Goddard’s survey, made in 1795, and produced by the plaintiff, is S, 76o W. The line between the same points, as run by Mr. White, is S. 77° 30' W.; and a direct line from the red oak to the water oak, throws the entire dam on the land of the defendant. This fact was admitted by Mr. Payne, the surveyor on the part of the plaintiff. The plaintiff, however, relied on several, other facts and circumstances proved by the witnesses, as sufficient to control the location.
    “ From the red oak, in the direction of the line towards the dam, and extending near to it, is a canal with banks. This is of ancient construction, and it was not proved by whom it was opened. Conceding that the canal was opened by those under whom the defendant claimed, yet it was urged for the plaintiff, that it was opened as near the line as could be ; so that the exterior bank of the canal should be on the line — it being usual on rice plantations to have a common boundary of that kind. Mr. Payne, therefore, on this assumption, took the bearing and distance from the red oak stump to the centre of the canal, and at the other end of the canal measured the same distance from the centre, so as to obtain a parallel line from the red oak; and producing the line to the water oak, the dam was thrown on the plaintiff’s side. Making the same experiment at an intermediate point, perhaps midway, and the same result would not ensue; the dam would be left on the defendant’s side. The course of the canal bank was irregular, and deviated from a direct line. Mr. Payne’s line, produced from the point of its termination at the dam, eastwardly, would pass south of, and include, the defendant’s barn. It w&s admitted by Mr. Payne that the dam, the subject of controversy, was not in direct continuation of the canal bank. It would be north of such line on the plaintiff’s side. Between the dam and the red oak, along the northern bank of the canal, were found the remains of an old fence, to which Mr. Payne attached importance, supposing the fence may have been put on what was understood to be the line ; and he said a line produced to the water oak station, in the direction of the fence, would throw the dam on the plaintiff’s' side. But another witness for the plaintiff, Harris, speaking of the same fence as being on the defendant’s side of the line n&w claimed, said they were only old rails, and pieces of rails, being along the bank, which may have been thrown out of the canal by freshets. He had been overseer of plaintiff, from 1830 to 1836, and being about to renew the fence there, conferred with defendant, who said he owned a few feet north of the canal, but consented that the fence should be made there ; and the defendant made a fence on his own side of the canal, as far as he planted. This witness further stated, that he was about to run his fence on the dam, but the defendant objected, and he made it north of the dam, leaving that on the defendant’s side. Another witness spoke of having seen the old fence along the northern bank of the canal, near the edge, and a few pannels standing.
    “ Mr. J. Izard Middleton had the management of the plaintiff’s plantation there, from the year 1825 to 1833. He found the dam there, and it was worked upon and repaired from time to time, as part of the plaintiff’s plantation ; as one of its dams necessary to the working of a mill below. The defendant, however, about the year 1828, put a small trunk in the dam, although he did not understand it was done under a claim of right to the dam.
    “ There had been some proceeding before magistrates and freeholders, in regard to obstructions by the plaintiff of the defendant’s water privileges. On a meeting of the parties, in pursuance of a summons from Mr. Fripp, (who did not attend, and nothing was done,) the defendant proposed to view the obstructions, and they went for that purpose to examine or view this dam, which Mr. Middleton (the witness) understood to be the obstruction complained of.
    “ The plaintiff offered in evidence these proceedings, and also the record of an action on the case brought heretofore, and tried, by the defendant against the plaintiff lor obstructing this water course. Verdict for defendant.
    
      “ Mr. White stated that there was a difference of twenty-one feet between Mr. Payne’s line and his, at the dam. An exact line between them, would pass diagonally through the dam. There was no proof when the dam was constructed, or by whom. Mr. Chisolm, a very intelligent planter, had examined the, premises a year or two ago. The defendant’s canal is a work of much labor, and very deep. The dam is north of it 7 or 8 feet, and he would think the dam indispensable to the use of the canal. As a planter, for the benefit of that plantation, would put the canal where it is, and would, of course, put the dam on his own land. Mr. Heyward, another planter, concurred with Mr. Chisolm, and added, that there were no traces of any other dam to the south of the disputed one; he thought such a canal could hardly have been made by any one, without room for a bank, unless by agreement; and both he and Mr. McKay, another planter, entertained no doubt that the dam was made for the beneficial use of the canal and rice fields above.
    “ It is proper to add that the proof was satisfactory, that the cutting of the dam was not a wanton act on the part of the defendant. The overflowing of the water occasioned by the dam, flooded a cart-way from his plantation to his woodland, indispensable to the full enjoyment of his property. A disagreement grew up between him and his neighbor on the subject; and he seems to have acted on advice and a claim of right, and not without notice.
    “ The cause was submitted to the jury with ample instructions, to which there seems to be no exceptions. Without the parol evidence, there appeared no doubt that Mr. White’s location was correct. The question was, whether the circumstances relied on by the plaintiff, were sufficient to establish another line, which would either leave the dam within the plaintiff’s land, or pass along and through the dam, as part of the boundary. The verdict was for the defendant.”
    The plaintiff appealed, and moved for a new trial, on the following grounds.
    
      1. That the plaintiff proved a trespass by the defendant in cutting the plaintiff’s dam, which he had erected more than forty years ago, and had, during all that time, repaired as one of the exterior bounds of his plantation ; which was laid down in a survey made in 1795, as within his line, and which had existed all that time as the boundary of the plaintiff’s actual possession.
    2. That the verdict of the jury was contrary to law and evidence, and to the charge of the court, in finding an ideal line, against an actual boundary of forty years standing.
    In February, 1842, the case came before the Court of Appeals in Charleston, and was argued by Petigru, for the motion, and McCarthy and Colcoclc, contra.
   The opinion of the court was delivered by

Butler, X

Besides the question of location, this case involves other questions of great interest to the parties concerned. And these depend, not so much upon the location of the dam, as upon the duration of its existence, and the manner in which the parties have enjoyed their property, in reference to it. The action between the same parties in a former case, in which the present plaintiff was defendant, put in issue some of these rights; and, as far as they were recognized and established by the verdict of the jury, they must be maintained by the judgment of thi scourt. The question of location itself, is not free from difficulty. Assuming, (as it was admitted to be,) that the red pak stump was a corner, a line run from it with geometrical straightness, áccording to the course called for, would leave the dam on the defendant’s land. In the absence of all other evidence to control the location, this would prevail from necessity. Yet it is almost certain that such a line would not be identical with the one run by the surveyor that first made it. The original line was run through a dense forest, when Bull sold to Middleton. Before that time, as it appears by an ancient survey dated 1737, the land upon which the dam is now situated evidently belonged to Bull, the grantee, as it is represented to run for some distance on the land now claimed by defendant. The plaintiff can now claim, however, only to the line then run. It would be singularly remarkable, if a line could be run, under the circumstances then existing, with mathematical exactness.

The surveyor, in running to a tree, might strike it at the centre or some inches from it, and when he went beyond, it would not be probable that he would preserve the precise line. In such case, he might make a set off of several inches, and in running a great distance, this would make a variation of many feet.

No two surveyors would run the same line alike, much less could any one run a line through a deep forest with scientific ■ precision. There is no reason for saying that the line run by Mr. White conforms precisely with the original boundary. It cannot now be ascertained, even by tradition, when or by whom the dam in controversy was. erected. There are many reasons to induce the belief' that it might have been made just after Bull sold to- Middleton, as a common boundary between the latter and the owner of the land now claimed by Gregorie. It has certainly been regarded as important to both tracts of land. The benefit to Middleton would be, .that it would enable him to cultivate his land by the ebbing and flowing of tide water, over which he could have a control by dams and trunks at the river. Whilst the other might have the benefit of the swamp water, for cultivating his land above. Both parties contend that the dam was originally built exclusively for the benefit of the party upon whose land it was located, without reference to the other. In Goddard’s plat, made in 1795, the dam is represented to be on plaintiff’s land. This would be sufficient color of title to give the plaintiff the right to the dam by virtue of his possession under it, if his possession had been all the time exclusive. On the other side, however, it appears that the persons under whom Gregorie claims, had possession of their land under old plats, representing, as it was contended, the dam to have been on their side. As early as 1764, a side drain or canal is represented on the defendant’s side; and it was contended that this dam was then made as auxilliary to and connected with the canal. Several witnesses said that such a dam would be in-. dispensable to the canal, and for that purpose, should have been on the defendant’s land; it being admitted that the canal is on the land of the defendant, although the dirt thrown from it might form a bank on the dividing line.

Looking at the case in this point of view, the jury may have been warranted in locating the dam in favor of defendant. Whether the jury have adopted the true location or not, we do not undertake to determine ; and if that was the entire question in the case, we would not feel disposed to interfere with the verdict. There are other views of the parties’ rights, which we think should have been explained and submitted to the jury, and which I shall now undertake to consider.

The identity of the dam cannot be seriously disputed; and it has existed so long, that the memory of man run-neth not to the contrary thereof. During its existence, it must have been repaired either by one or both of the proprietors of the adjacent lands, otherwise it would have been, by this time, entirely obliterated. During part of the time, the present plaintiff kept it in repair, and regarded it as part of his external boundary; and if he did not claim the dam itself, he certainly claimed to it, and with reference to its benefits in cultivating his land on the river. And until a few years since, the swamp water was entirely stopped by this dam, and was drained through or thrown back on defendant’s land. Instead of running as it had done by nature, the water was diverted from its course by this dam, and the canal connected with it. If this had been done all that time, more than 60 years, exclusively ■for the benefit of the defendant and those under whom he claims, would it not have given them a perfect right of easement resulting from such a state of things ? Could the plaintiff* after such a lapse of time, have questioned their prescriptive rights 1 Prescription is founded on the presumption of a grant. And after twenty years, the law would have presumed that the plaintiff or his ancestors had granted to the swamp planters above, the right of stopping the water for their exclusive benefit, in the cultivation of their rice lands. No one has a right to divert a stream from its natural current, to the prejudice of those who own lands below. But where it has been done by a party above for twenty years, his original wrong has ripened into a prescriptive right. Let the proposition be reversed. Is the party below incapable of acquiring a right of exemption from having his land overflowed, by the water’s being restored to its natural course 1 This is what the plaintiff contends for. ' He says, for more than forty years he has accommodated himself to a state of things existing by mutual consent, or brought about by the acts of the planters above. By way of illustrating his position, suppose that in consequence of the dam he had cut down and drained the land lying next to the river, and had planted it in some crop requiring entirely a dry culture— such as corn or cotton. Would the defendant have a right to cut his dam and destroy the growing- crop 1 For all legal purposes, the plaintiff might, under such circumstances, have regarded his land as though the water had never flowed through it. Indeed, I. think he would have as much right to enjoy his property in security, as if he had cultivated dry land above ; and it is very clear, that where one has land lying adjacent to a stream, and a proprietor below dams the water back on him, the former has a right of action to abate the nuisance.

The present plaintiff has cultivated his land on the river in rice. And for the purpose of cultivating such a crop with security and advantage, he must avail himself of the flux and reflux of the tide. To do this with certainty, he must be exempt from the overflowing of the water which has heretofore been obstructed in its passage by the dam.

Having come to the conclusion that some rights were acquirable by Mr. Middleton, from the long existence of the dam, the next question that presents itself for consideration is, what rights of his were determined* by the former recovery, or the finding of the jury in the case of Gregorie against Middleton 7 That was a special action on the case, the great object of which was to assert -and establish Gregorie’s right to vent the back water in the swamp, through Middleton’s land. A ,plat of survey representing the premises, was given in evidence. Upon that plat, the original run of the water, and of course that contended for in the case, is indicated by a dotted line, shaded with red; this line commences at the dam, and runs thence in different channels to the river. From this, it would appear that Gregorie wished to vent the water from his own swamp lands, through Middleton’s land.

The finding of the jury is in these words, “ We find for the defendant, his privileges on the water course.” What these privileges were, in fact, does not appear from the verdict, or any thing on the record. It was, however, a finding against the plaintiff, his right to vent the swamp water through the land of the then defendant; and it was also finding for the defendant, an exemption from plaintiff’s claim of right. What rights or privileges the jury intended to affirm to the plaintiff, does not exactly appear; they can only be inferred from the nature of the issue. I have little doubt it was the intention of the jury to say that Middleton had a right to flow and drain his rice lands by taking advantage of the tide, without the interference of Gregorie. As this is a subject of some controversy, I will not undertake to pronounce an authoritative judgment on it. Let that, as well as all the other questions involved in the case, be considered, and determined on another trial.

Motion granted.

Richardson, O’Neall, Evans and Wardlaw, JJ. concurred.  