
    Beriah Palmer and others against Amos Mulligan and others.
    NEW-YORK,
    Nov. 1805
    THIS was an action on the case for erecting and continuing a nuisance to the plaintiffs’ mills and dam, situated upon the river Hudson, at Stillwater, in the county of Saratoga, by building above the same a dam, and thereby directing the water from its ancient and accustomed course, and from the mills and dam of the. plaintiffs, in consequence whereof they had not a sufficiency of water for working.
    The declaration set forth other gravamina in obstructing the rafting of timber into their dam, which was used as well to keep logs to be sawed, as to collect and retain water for working their mills in also opening the sluice-way of the defendants’ dam, and causing the rubbish col*' kcted therein, to be carried into that of the plaintiffs, by means whereof it was choaked up, and rendered useless,-80 that they lost the benefit and advantage of their mills.
    
      1⅝ Hudson ⅛ a public rive:-, above tide water, «f temOir. An action will not lie for diverting the _ water of a river from its xw sual course, by erecting a dam for mills above the mills of &- noilier, if sufficient water be left to work the lower mills though,in cob-seqncuce of such erection, it be necessary to run the mill-dam of the lower miilsfur-ther into the stream, and the difficulty of getting logs to the lower mills he increased so much us to require one hand more for every 25 logs.
    Where persons have an equal right to erectmill-dams on a river, the rubbish which comes from a newly erected upper dam, to an old lower dam, though it nknceTothe6' lower of about 250 dollars a year, will, if a juryhavefound M favor oí the defendant, and tíiePfíoatii<gllat rubbish of the river be lessen-edbythe erection of the upper dam, be damnum ab-NoVewtrial will be allowed on account of newly discov-ifTtappeSthat nt might have been procured on the first feial.
    From the evidence at the trial, it appeared that the plaintiffs’ mills were erected on the first settlement of that part of the country, about forty years ago, upon their own ground, and were fed with water by a dam run .out into the river. That at their first building they consisted of a grist and saw-mill, which, after being burnt down, were, within a year, rebuilt on the same spot. That after this, the saw-mill was a second time consumed by fire, and though the grist-mill, (on which point there was a small contrariety of testimony) was worked from time to time, the saw-mill was not reconstructed, till seven or eight years afterwards. A year or two before this period, the defendants erected their mill and dam, about two hundred yards above those of the plaintiffs. That the unavoidable consequence of the dam of the defendants, was f0 oblige the plaintiffs to run their’s further out into the stream ; but even then, the current was so turned off ^nt0 ^16 river, as necessarily to increase the difficulty of brinp:mQ' timber into the saw-mill of the plaintiffs ; inso- ... . , , . much that it was impossible to avoid losing a great many ¡og.s or reclaiming them at a considerable expense, to ob- ° 1 ° / viate which, the defendants had, when applied to, by the plaintiffs, refused permission to have a way made through tlueir dam. That the rubbish from the defendants’ mill, which it was more difficult to clear, at low than high water was a continual inconvenience to the plaintiffs, who 5 . . r . sustained an injury of about 8 shillings a day, exclusive °f an increase of labor, which, since the erection of the defendants’ dam, required about one hand more to every * . 25 logs, than was formerly necessary to get them in.
    The jury finding in favor of the defendants, application was now made, to set aside that verdict, as being , . , , , , .. „ contrary to the testimony adduced, and on a discovery ox new testimony, wbicb it appeared might have been obtained on the first trial.
    
      Emott, for the plantiffs.
    On the first point stated, and upon which we intended to rely, the mere reading the ease shews there can be no dispute ; but the defendants„ mean to contend, that the mills and dam of the plaintiffs, being on a public river, are in themselves public nuisances, and therefore the obstruction to them, does not give any right of action. To prove the suit maybe maintained, it will be necessary to establish that the Hudson is not a public river, in the sense which will make these mills a nuisance. For if it be one of such a nature as to permit the plaintiffs to acquire property in the bed of it, their mills and dam cannot be nuisances. It is laid down in the case of the Fishery of the Banne, Davis 56, that there are two kinds of rivers, navigable, and not navigable ; the former extending as high as the sea ebbs and flows, and belonging to the king ; the latter being such, where the sea does not ebb and flow, and belonging to the landholders on each side. This exactly answers the description of the Hudson where the mills in question are erected; for ai Stillwater, there is neither flux, nor reflux of the tide. We find the doctrine in Davis, confirmed in the treatise of Lord Hale, de Portibus Maris, • JLarg* Tracts, 5.
    
    SPENCER, J. Has not the legislature granted islands above the site of these mills, and by that shewn that they consider the Fludson to be a public river ?■
    
      Ematu
    
    Where they have done this, the river has' formed the boundaries of the adjoining patents, which have been granted to the river. Otherwise the common law prevails, and that was the very reason which induced the legislature to declare that certain rivers, coming within the description above given, of private rivers, should, notwithstanding, be deemed highways. 1 Rev. Laws 601, 2. Sec. 34. But although we claim property in this river, we admit the public have a right to it for all the purposes of navigation. Harg. 6. We do not insist on the power to stop up the river. That, for the convenience of the-people at large is open, but this does not impair our-right of property against individuals. Admitting the Hudson t0 a public river, all erections on it are not to be’ considered nuisances. They can be deemed so, only under .the idea that a public river is a highway. Buller J. observes in Ball v. Herbert, 3 £). & E. 263, “ no two cases “ can be more distinct. In the latter, if the way be found- “ erous and out of repair, the public have a right to go on “the adjoining land; but if a river should happen to, be “ choaked up with mud, that would not jgive the public a “ right to cut another passage through the adjoining lands.’51 To make the. mills-and dam nuisances they must, allowing the river to be public, narrow the river so as to impede the navigation, “ and this is matter of fact. It is not eve- “ ry building below low water mark that is ipso facto in “ law a nuisance ; for that would destroy all the keys that “ are in all the ports in EnglandR Per Lord Hale in Harg. Tracts, 85. The grants to erect wharves beyond low water mark, are proofs that so long as the navigation is uninterrupted, a building, even on the public river, is not a nuisance. At all events, our nuisance will not justify theirs. It may, however be said, that the defendants are as well entitled to run out a dam from their shore, as we from ours. This, with some qualifications, is true : for it must be so done as not to injure us in the accustomed use of the water. In Brotun v. Best, 1 Wils. 174, in an action for diverting a water course which arose in the defendant’s own grounds, the plaintiff declared simply on his possession of the place to which it used to run, and the court held it good, for the defendant could not divert so as'to interrupt the ancient enjoyment of the stream. The same principle is recognised in Duncomb v. Sir Edward Randall, Hetley 34. To maintain the action it is not necessary that mills should appear to be ancient. That-js requisite only when the water belonging to another is prescribed for. Palmis v. Heblethwait⅛ Skin. 65. “ If a “ man,” says Lord Hale, “ erect a mill on a water course *c running- through his land, he may bring his action for “ diverting the stream, and not say antiquum molendi-mini.” Cox v. Mathews, 1 Pent. 237. The same doctrine is laid down in Rutland v. Bowler, Palm. 290, and Hutton 100. For by the mere erection of the mill, the plaintiff acquired a right, which even the purchase of the land on which it stood, would not take away, as a right to water is not extinguished by unity of possession. Shumj v. Plggct, 3 Bulst. 339. Was it necessary even to presume a grant for the stream, it ought, after a use, like ours, of forty years, to be presumed. Thirty years enjoyment of a highway is said to warrant one. Bull. N. P. 7.1. In the case of lights, twenty years possession have been held enough. 3 'D. & E. 159. It may, however, be thought, that because the mills -were burnt down, the defendants had a right to divert; but even pulling down the mills by the plaintiffs themselves, would not have impaired their title to the water ; they might even in such a case prescribe. Pahnis v. Hehletlnvait, as reported in 2 Show. 261. The same position is laid down in LuttrePs case, 4 Rep. 86, 7. The present, therefore, is still stronger; for the mills were burnt down.
    /'bofe, contra.
    The lapse of time before the plaintiffs attempted to rebuild their mills, is alone an answer to their claim of right. The convenience of a new country demands that mills so long left unrebuilt, should be deemed to be abandoned and the right to the water relinquished. The authorities cited, appfy to mills on private streams. The Hudson at Stillwater is a public river.
    
      
      
         The book is mispage, for through printed, it is 32.
    
    
      
      
         Darwin v. Up, cited there.
    
   SpeNcer, J.

A motion has been made on the part of the plaintiffs for a new trial on two grounds. 1st. That the verdict is against the weight of evidence, and 2d, on discovery of new evidence.

The plaintiffs’ witnesses generally accorded in saying, that the only injury to the plaindffs by the erection of the defendants’ dam, is this, that it occasioned additional labor and expense to the plaintiffs to carry logs into their dam. None of them pretend thatthere has been any diversion of the water since the defendants erected their dam, which was seven or eight years ago. Some of the plains tiffs’ witnesses think the rubbish increased in the plaintiffs* dam, since the erection of that of the defendants’; others think it not increased.

It is conceded that the plaintiffs and defendants own the lands respectively on the bank of the river, opposite their mills and dams.

Whether the Hudson river be considered as a public highway, or the bed of it as belonging to the owners of the adjacent shores, will not, I think, vary the \result. — - I cannot, however, but consider it as a common highway, independent of its being navigable witli small craft and rafts above the place in dispute, the legislature have con, stantly considered this river as public, and common to all the citizens of the state above tide water, and above Still-water. They have granted islands in this river at Glens Falls, and in the town of Greenwich, in Washington county.

The act declaring certain waters highways not extending to this river, has been considered as impliedly sanctioning the idea that it is not public property; I should draw the contrary inference, for if the legislature have declared such.rivers as the Qonhocton, the Unadilla, the east branch of the Chenango, and the great variety,of other inland waters, public highways, as necessary to the public convenience, it must have been taken for granted, that the Hudson river was already a pjiblic highway, and needed not an act declaring, it to be so. If then this river is to be deemed a highway, the erection of both dams are nuisances, 'and it is questionable whether the plaintiffs can, without right or title, complain that the defendants’ nuisance is injurious to their nuisance ; but on this point it is unnecessary to express an opinion,

If this river be considered as private property, belong; ingto the owners of the adjacent shores, the plaintiffs caii-not maintain their action from the evidence before us ; because there is no pretence of the waters being diverted ; the use of the plaintiffs’ property is rendered less commodious by the defendants’ dam. The act itself, in erecting the dam, on the principles contended for by the plaintiffs’ counsel, was a lawful act; and though in its consequences slightly injurious, the plaintiffs are remediless. It would have been as tenable ground if the plaintiffs had declared on the loss of custom to their mill, by the erection of the defendants ; it is a ‘damnum absque injuria. T he . erection of dams on all rivers, are injurious in some degree to those who have mills on the same stream below, in withholding the water, and by a greater evaporation in consequence of an increased surface, yet such injuries, I believe, were never thought to afford a ground of action. In any and every view of the subject, the verdict was legal, and just. The second ground of th e motion does not alter the case, even if the testimony could be considered as newly discovered, and that there had been no laches on the part of the plaintiffs ; but for aught that appears, John White, one of the plaintiffs, knew of this testimony and neglected to procure it. I am averse, however, to putting it at all on that ground ; the testimony discovered is wholly irrelevant and immaterial. In my opinion, the plaintiff takes nothing by his motion.

LiviNCíston J.

In determining this cause, I am willing to admit that the erection of the plaintiffs’ mills and dam is not only no nuisance or obstruction to the river, but a public as well as private benefit. Still I am not satisfied of their right to recover. Whatever their pretensions to build a dam and mills adjoining their own land may have been, it must be conceded that, as far as the public are concerned, the defendants had the same right opposite their ground, provided it could be done without injury to the navigation of the river. This is not pretended to be the case, but as the plaintiffs’ mills were first erected, it Is said, that if the defendants have any right of this kind, they must so use it as not to injure their neighbours. Without denying this position, which is indeed become a familiar maxim, its operation must be restrained within reasonable bounds so as not to deprive a man of the enjoyment of his property, merely because of some trifling’ inconvenience or damage to others — of this nature is the injury now complained of, so far at least as it is supported by proof. It is not pretended that the water is diverted, or that less business can be now done at the plaintiffs’ mills than formerly, but they are obliged to bring their logs a very little farther round in the river, (in order to get them into the dam) which is the principal, if not only inconvenience they are exposed to by the defendants’ conduct. Were the law to regard little inconveniencies of this nature, he who could first build a dam or mill on any public and navigable river, would acquire an exclusive right, at least for some distance, whether he owned the contiguous banks or not; for it would not Be easy to build a second dam or mound in the same river on the same side, unless at a considerable distance, without producing some mischief or detriment to the owner of the first. Were this not permitted for fear of some inconsiderable damage to other persons, the public, whose advantage is always to be regarded, would be deprived of the benefit which always attends competition and rivalry. As well, therefore, to secure to individuals the free and undisturbed enjoyment of their property, as to the public, the benefits which must frequently redound to it from such use, the operation of the maxim sic títere tuo ut alicnum non ladas should be limited to such cases only, where a manifest and ' serious damage is the result of such use or enjoyment and where it is very clear indeed, that the party had no. right to use it in that way. Hence it becomes impossible, and indeed improper, to attempt to define every case which may occur of this kind. Each must depend on its own circumstances, and the fewer precedents of this kind which are set, the better. Confining myself, therefore, strictly to the case before us, my opinion is, and the jury probably proceeded on that ground, that the plaintiffs proved no injury, or one so remote and insignificant, as not to justify their insisting on an abatement of the defendants’ dam, or damages for its erection.

If this view of the subject be correct, it will account for my passing over some points which were made on the argument without giving an opinion on them. This I avoid doing, because experience has already convinced me that it is always best in a judge to be silent on every point which he does not regard important and necessary in the decision of a cause.

I will only add, that the further testimony which is expected from Schuyler, will not change what appears to me the merits of this cause.

Neither, therefore, as a verdict against evidence, nor on the ground of newly discovered evidence, can I consent to a new trial.

Tojipkins, J. I concur in the result of the opinions deliver e 1.

THOMPSON, J.

On the argument, the right of the plaintiffs, to maintain an action, even admitting them to have sustained an injury, has been called in question, because as is alleged, their mills being erected on a public river, are in. judgment of law-a nuisance. How far this allegation is founded in point of fact, is not now a subject of inquiry; that is a question between the public and the plaintiffs, and cannot be tried in this collateral way, 4 Bur. 2163. Har. Law Tracts, 8. 9. It is a fact of public notoriety, and therefore proper to be assumed as such, that the tide does not ebb and flow as high up the Hudson river, as the place in question ; and therefore, the land under the water is, I apprehend, as much the subject of a private grant, as the land adjoining the river, subject however, to be used by the public for the purposes of boating, and rafting, and other objects of this description, as far as shall be necessary for public use and accommodation, Har. Law Tracts, S. 9. These are the rules and distinctions adopted by Hargrave„ and which appear to me to be just and reasonable. The right thus claimed by the plaintiffs, being a subject of private and individual interest, we have only to look to the facts in the case, to see how far the plaintiffs have established this right in themselves, and without examining such fact in detail, I am warranted in saying, they have all the right that may le* gaily be presumed to result from a possession of about forty years; and which I consider amply sufficient to raise the presumption of a grant. Lord Ellenborough in a late case in the court of King’s Bench, in England, says, the general rule of law is% that independent of any particular enjoyment, used to be had by another, every man has a right to have the advantage of a flow of water, in his own land, without diminution or alteration ; but an adverse right may exist, founded on the occupation of another, and if this occupation has existed for so long a time, as may raise the presumption of a grant, other parties must take the stream subject to such adverse right, and that twenty years exclusive enjoyment of the water, in any particular manner, affords a presumption of right, in the party so enjoying it, derived from grant or act of parliament, 6 East Rep. 214. 215. . If the rules there laid down, are, as I apprehend them to be, undeniable principles of the common law, and we apply them to the present case, they will establish beyond contradiction, the plaintiffs’ right to the use of the water, in the same manner it was enjoyed, before the erection of the defendants’ mill and dam. No presumption of right derived, from a grant, can attach to the defendants, they not having been in possession more than eight or ten years. If I am correct then with respect to the law, as applicable to the case, it remains only to examine the facts touching the injury alleged to have been sustained by the plaintiffs, in order to test the propriety of the verdict. The broad question for the determination of the jury was, whether the plaintiffs had sustained any injury by the mills and dam erected by the defendants, about two hundred yards above those of the plaintiffs. One cause of injury complained of was, the increased difficulty of getting logs into their dam. On this subject there was no contradiction of testimony. That the upper dam would increase this difficulty, was not only fully established by the plaintiffs’ witnesses, but strengthened and confirmed by those of the defendants. The injury on this account, is not merely nominal, but real" and permanent, and 'chat to a very considerable extent. One of the witnesses testified that before the defendants’ dam was built, the plaintiffs might bring into their dam, from one hundred to one hundred and fifty logs at a time, whereas at present, they cannot more than twenty-five, and that logs are frequently lost in getting them over, or past the upper dam ; that by reason thereof, within four years past, he supposed the plaintiffs had lost as much as four hundred logs, worth from thirty-five to forty pounds per hundred. Another witness \vho had been a sawyer in the plaintiffs’ mill, swore that it was impracticable to go round the upper dam with logs, and get into the lower dam, the course of the current being so al-> tered, that they would run past, and that being obliged to run over the upper dam, the cribs or rafts were frequently broken and the logs lost: that the rubbish from the upper mill was a daily inconvenience to the lower one; that he never was employed twenty-four hours in sawing, without clearing it away, which would not have been the case but for the upper dam, and he estimated the damage in the mere stoppage of the mill, at eight shillings per day. From the testimony in the case, it appears that these dams are formed by throwing wings out diagonally into the river ; that the upper dam stands on the channel, through which logs used to pass to the plaintiffs’ mill; that the course of the current is thereby changed, set further out into the river, and rendered more rapid; that the upper dam made it necessary for the plaintiffs, to extend theirs further into the river, for the purpose of getting more water, and to enable them to bring logs into their dam, which would have been impracticable without such extension. From the whole current of testimony, I think it is manifest, that the plaintiffs have sustained very essential injury. If the facts in the case will warrant the presumption, that the plaintiffs’ right is derived from a grant, that right must be understood to secure to them the use of the water, in the manner they enjo}-ed it before the erection of the defendants’ dam. I admit that actions of this kind ought not to be countenanced, where the damages are merely nominal, or a party is put to some trifling inconvenience, but I do not consider this a case of that description, the damages here are real and permanent, and are occasioned by a diversion and alteration, of the usual and ordinary current of the water. Under these circumstances, I cannot think the jury confined themselves to the question of damages, but undertook to pronounce upon the law, as applicable to the rights-of the parties. In whatever point of light, therefore, the case is viewed, I think the verdict is both against law and. evidence, and that a new trial ought to be granted.

I have not thought it necessary, to say any thing respecting the newly discovered testimony, because I do not consider that the evidence on the trial, could afford any presumption of an abandonment, or dereliction by the plaintiffs, or those under whom they claim, of the right to the use of the water as formerly enjoyed. If any doubt, however, could arise on that subject, it would, I think, be removed by the affidavit accompanying the present application.

Kent, C. J.

The first object of inquiry, as arising upon this case is, whether the fact proved by the plantiffs will authorise a recovery ?

The plaintiffs, and those from whom they derive title, own the land on the Hudson river at Stillwater, and liad for upwards of thirty years before the erection of the dam complained of, owned and enjoyed a grist and saw-mill upon that river. The Hudson at Stillwater is a fresh river, not navigable in the common law sense of the term, for the tide does not ebb and flow at that place. In the case of the Royal Fishery, in the river Banne, Davies Rep. 152, 155, 157. it was resolved, that by the rules and authorities of the common law, every river where the sea does not ebb and flow was an inland river not navigable, and belonged to the owners of the adjoining soil. This case was cited by Mr. Justice Tates, in Carter v. Murcot, 4 Burr, 2162. as a very good case, and a solid authority, and in that latter case recognized this distinction between rivers navigable and not navigable, and in the King v. Wharton, 12 Mod. 510. Lord Holt laid down the same doctrine. In Sir Matthew Hale’s excellent treatise, . . . , , , ,. , • de jure mans, tsrc. Hargrave s law tracts, and wmcn is considered by Mr. Butler as exhausting the whole law on the subject, he lays down the law generally that fresh rivers of what kind soever, do of common right belong to owners of the adjacent soil,buthe admits that freshrivers, as well as those which ebb and flow, may be under the servitude of the public interest, and may be of common or public use for the carriage of boats, &c. and in that sense may be regarded as common highways by water. Thus, he adds, that the Wey, Severn, Thames, &c. as well above as below the flowing of the tide, and as well in the parts where they are of private as of public property^ are public rivers juris publicly and nuisances a,:d impediments therein, are liable to be punished by indictment. They are called public rivers not in reference to the property of the river, but to the public use. Hargrave, p. 5, 8, 9. This is the true and just rule which harmonizes private right, with the public interest. The Hudson at Stillwater is capable of being held and enjoyed as private property, but it is, notwithstanding, to be deemed a public highway for public uses, such as' that of rafting lumber, to which purpose it has heretofore been, and still is beneficially subservient. To obátruct this and other public uses of the river, by dams, &c. would be a nuisance, but of this question we have nothing to do in the present case. Whether a dam or mill be a nuisance, is a question of fact which is not examinable in this present action, and if it was, there is e-very reason to conclude that neither of the dams or mills are nuisances from the length of time that they have been permitted to remain.

It is not stated whether the river %vas, or was not' excepted out of the grants under which the parties, in this suit, hold their property. The case admits that the right of the premises, whatever it is, was in the plaintiffs, and we have seen that the river at the place in question is susceptible of being granted without any public inconvenience, because the right of the public, to the use of the water for navigation would remain incontestible. As between the Parlaes t0 su-it and the question litigated by them, the water may be considered as if included in their grants, whatever .the real fact may be. The defendants have clearly therefore no' right to obstruct the plaintiffs in the enjoyment of the water. They have an equal right to build a mill on their soil, but they must so use the water and so construct their dam as not to annoy their neighbour below in the enjoyment of the same water. The plaintiffs had used and enjoyed their mills even beyond the present period of limitation in a writ of right, when the defendants built their dam. It was not requisite, however, that the plaintiffs should have been able to prescribe for the enjoyment of their mills. It is sufficient that they had an interest in the water, and the defendants cannot lawfully divert the natural course of the river, or injure the plaintiffs in the exercise of their rights. A water-course doth not begin by prescription, as Whitlock, J. observes, nor yet by assent, but the same doth begin ex jure natures, having taken this course naturally, and cannot be diverted. All the cases agree that the plaintiff need not aver his milito be an an-dent mill, where a natural water-course is diverted. 1 Vent. 237, Skinn, 65, Palm. 290, 1 Wils. 174. 3 Bulst. 340, The fact then, of the interruption of the use of the water, after the miU was burnt, and before it was rebuilt, is perfectly immaterial. The question is, have not the defendants materially and permanently inj ured the plaintiffs by giving a different direction to the course of the main current ? Many cases may be supposed which would be dam-naabsquf injuria; such, for instance, as the insensible evaporation and decrease of water by dams, or the occasional, ^increase ancl decrease of the velocity of the current, and of the quantum of water below. Many such circumstances maybe inevitable from the establishment of one dam above another upon the same stream. The question in such cases would turn upon, the nature and extent of the injury..— Here the injury is a continued and permanent one, and very material to the party. The defendants have not attempt» ⅝-d to shew that the imury was inevitable, and that they , , . . , , , , . , cannot have and enjoy a mill m the place they do, without creating this injury. What would be the effect of this proof if shewn, would be another question, but no such defence has been attempted, and I may take it therefore, for granted, that the defendants can, if they please, so alter their dam as to be able to enjoy their mill and avoid giving the injury.

If a right of action in the plaintiffs be assumed, I think this a case proper for the interference of the court. The verdict is clearly against evidence. The plaintiffs had eight witnesses who established the fact that the dam and mills of the defendants did materially injure and disturb the plaintiffs. One witness estimated the damage from $90 to $100 a year. The four witnesses on the part of the defendants do not attempt any direct contradiction of this fact. They prove only that the plaintiffs had felt inconveniences before the erection of the defendants’ dam, but they do not deny but that these inconveniences have been increased.

For these reasons I am of opinion that the verdict ought to be set aside.  