
    Commonwealth vs. Reuben Fisher, Jr.
    Where a mill owner, who has a grant of a right to flow certain lands, suffers his mill and dam to go to decay, and ceases to flow the land, and a highway is then made across the land, he cannot, by afterwards granting his mill privilege and right to flow, authorize his grantee to overflow such highway by means of a new mill dam on the site of the old one 5 and his grantee, if he so overflow the highway, is punishable for a nuisance.
    At the last November term of the court of common pleas in the county of Franklin, the defendant was found guilty on an indictment for a nuisance in a highway in the town of Warwick, alleged to have been caused by his erecting a dam across a stream of water, whereby said highway was overflowed and obstructed, from the 1st of November 1841 until August 1842.
    The question, whether the defendant was rightly convicted, was submitted to the court on the following report of the evidence given at the trial:
    “ The highway in question was located and established on the petition of Samuel Moore and others, in 1829, and accepted Dy the county commissioners, in March 1831. The said petitioners prayed that said way might be laid out at their expense; and the record shows that some of the petitioners, among whom was the said Samuel Moore, relinquished all claim to damages on account of the laying out of said highway, which was laid in part across his land.
    “In 1837, a petition was presented to the county commissioners for alterations and specific repairs between certain termini in said highway, including that part thereof which crossed the land of said Moore, and also the part alleged to be overflowed by the defendant. Said commissioners, after due proceedings had, adjudged some alterations and specific repairs ; but none in that part of said way alleged to be so overflowed: And they adjudged that said Moore sustained no damages by said alterations and repairs ; he being thereby benefitted as much as injured in his property.
    “ It was proved or admitted, that the defendant erected said dam, together with a mill, in the autumn of 1841, and overflowed said highway in November 1841. And the defendant proved that there was formerly a dam, on the site of his present dam, and that said former dam was used to work a mill, which stood where his present mill stands, until the year 1817 or 1818, when it ceased to be used, and went down; but the old dam remained standing for some years after, in a broken and decayed state, and continued to flow the meadows above in times of high water. The old dam was higher than the present one, and flowed the spot where the said highway is now flowed.
    “ The defendant introduced the following deeds: 1. A deed, dated December 10th 1799, from Nathaniel W. Williams and Dudley Williams to Jonathan Moore, conveying one third of a mill privilege, (the same now occupied by the defendant,) on which the dam in question was erected; which deed conveyed, in express terms, the right of flowing the meadow above the dam, from October 20th to May 1st, each year. 2. A deed from Jonathan Blake, Jr., administrator of Jonathan Moore, dated November 3d 1828, conveying three and a half acres, (proved to be half of the privilege belonging to the defendant,) together with all the privilege of flowing the meadows above said land, that said Jonathan Moore received by his deed from Nathaniel W. and Dudley Williams. 3. A deed, dated August 23d 1804, of Samuel Williams to Mark Moore, conveying a tract of land in Warwick, together with ‘ one half of a saw mill and one half of the privilege of a stream of water and dam across said stream, with all the privileges,’ &c.; which were proved to be one half of the privilege in question, above mentioned. 4. A deed from Samuel Moore, son and heir of said Mark Moore, to the defendant, dated August 7th 1841, conveying seven acres of land, (proved to be the mill privilege in question,) with all the right to flow other lands, that the grantor ever had or possessed. 5. A deed, dated November 29th 1828, from Moses Ellis to David Goddard, conveying land which was proved to contain part of the land flowed by the defendant’s dam. And it was proved that the part of said highway flowed by said dam, as alleged in the indictment, lies within the tract conveyed by this deed. In this deed, the right of flowing the part of said land in question is mentioned and reserved. 6. A deed from Dudley Williams to William Symonds, dated November 25th 1799, and a deed from Dudley Williams to Henry Leland, dated January 21st 1804, both conveying (as was proved) parts of the land flowed by said dam, and both mentioning and reserving the right of flowing.
    “ Samuel Moore, the defendant’s grantor, was the same person who was one of the petitioners for the highway, as aforesaid ; and Mark Moore, father of said Samuel Moore, and from whom said Samuel inherited the privilege in question, died in the spring of the year 1832.”
    
      
      Alvord, for the defendant.
    The right to flow, so far as it was proved that the defendant had flowed, was acquired by grant ;.and a servitude by grant is not lost by non-user, but only by adverse possession. Arnold v. Stevens, 24 Pick. 106. White v. Crawford, 10 Mass. 183. It will be argued that the facts show an abandonment, within the decision in French v. Brain~ tree Manuf. Co. 23 Pick. 216. But that was a case on the statute concerning mills, and is not applicable.
    The defendant’s right to flow was a property which could not be taken for public use, without compensation. Perley v. Chandler, 6 Mass. 458. Rowe v. Granite Bridge Corporation, 21 Pick. 348. 1 U. S. Digest, Constitutional Law, 138 & seq.
    
    The case of Commonwealth v. Stevens, 10 Pick. 247, is materially different from the present, as the road, in that case, was made more than fifty years before any dam was erected.
    
      Aiken, for the Commonwealth.
    As the mill privilege went down in 1817 or 1818, and Samuel Moore, twelve years after-wards, petitioned for a road over the land that used to be flowed, and made no claim for damages, and the defendant’s title commenced in 1841, there is a clear case of abandonment. See 23 Pick. 221. Mark Moore probably had a good claim to damages, wfien the road was laid out. And he either waived or received them, or, by his neglect, he and his heirs and assigns are barred, and the defendant is estopped, as against the Commonwealth.
    
      Davis replied.
   Hubbakd, J.

This is an indictment for a nuisance in a highway in the town of Warwick, occasioned by the act of the defendant, in erecting a dam across a stream of water, in consequence of which the highway was overflowed.

The defendant justifies the act complained of, because there existed a right to overflow the land, prior to the laying out of the way. That such a right once existed is not denied; but it appears that, at the time of laying out the way, the dam, formerly erected to raise the head of water, had gone to decay, and there was then no flowing of the land taken for the road. The laying out of the highway, in the manner in which it was laid out, was therefore a legal act, as no watercourse was pent up; and the party then enjoying the right to flow was entitled to compensation in damages, for the injury sustained by him, provided he preferred his claim within twelve months. And we must presume he either recovered his damages or waived them, or otherwise lost his right to claim them, by his own neglect. Ellis v. Welch, 6 Mass. 251. Goddard v. City of Boston, 20 Pick. 407. When, therefore, the defendant purchased the estate in 1841, the town or county had previously acquired an easement over the land, by the laying out and maintenance of the highway. Now, there cannot be two adverse easements existing at the same time, the enjoyment of one of which will interrupt or destroy the other; but one of them must necessarily be suspended or defeated; and that which is prior in time is better in right. And here, owing to the neglect of former owners, the public had acquired a right prior to the defendant. Whatever his rights might be, as against surrounding proprietors, if the road was discontinued, yet while it remains, the act of the defendant is a violation of the easement, and is a nuisance which cannot be justified. Perley v. Chandler, 6 Mass. 456. Commonwealth v. Stevens, 10 Pick. 247.

It is not necessary, therefore, to inquire into the fact whether the right to overflow this land had been abandoned by former proprietors, as alleged by the counsel for the government; though such rights may be abandoned; French v. Braintree Manuf. Co. 23 Pick. 216; Fitch v. Stevens, 4 Met. 428; nor whether the right of the defendant, if it exists, was acquired by grant or prescription; the fact being of no importance in this case, as the government has, in the exercise of the right to take private property for public uses, acquired an easement over the premises, which the defendant cannot lawfully disturb. The verdict against the defendant was therefore right, and sen tence must follow it.  