
    Slade Luther vs. The Winnisimmet Company.
    No period less than twenty years will give to an owner of land any rights by prescription or adverse user against an adjacent owner, deriving title from the same grantor.
    To constitute a watercourse from one tract of land into another, there must be something more than a mere surface drainage over the entire face of the first tract on to the second, occasioned by unusual freshets or other extraordinary causes.
    Ii an action for damages, occasioned by the filling up by the defendants of then land, lying adjacent to that of the plaintiff, whereby the free flow of water off the plaintiff’s land, as formerly existing, had been obstructed, instructions to the jury that “ they should take into consideration the evidence on both sides bearing on this point, and, if they were satisfied that the filling up had actually benefited the plaintiff’s estate in any particular, they would, in assessing the damages, make an allowance for such benefit, and give the plaintiff such sum in damages as they found upon the evidence would fully indemnify and compensate him for all the damage he had actually sustained,” are correct.
    This was an action of trespass on the case, tried before Bigelow, J., in this court. The writ contained three counts. The first two alleged the obstruction by the defendants of an ancient watercourse, running through the plaintiff’s land and land of the defendants; and the third alleged a right in the plaintiff to have the water, at all times, flow off his land and run through the defendants’ land, as appurtenant to the premises described in the writ. The defendants pleaded the general issue.
    It appeared in evidence, and was admitted at the trial, that the land and premises in question were a part of the tract of land in Chelsea conveyed to the plaintiff by Francis B. Fay and others, by deed dated May 1,1833, and that a small portion of the premises described in the writ, on the northwesterly part thereof, formed part of a pond.
    The plaintiff offered evidence that, at the date of the above conveyance, and subsequently thereto, there 'was a watercourse, or stream of water, flowing from land situated above the premises described, through a portion of those premises, into the pond, and thence, by a natural outlet on the north side of the same, upon certain marshes, from which it passed into Mystic river, and thence into the sea; and that such watercourse drained off the water falling and accumulating on the plaintiff’s premises into the pond.
    It further appeared that, in October, 1849, the defendants filled up so much of the pond as was on their own land, and built a street through the same; and evidence was offered, that thereby the watercourse was obstructed, so that, in November, 1849, and on several subsequent occasions, the land and houses of the plaintiff, situate on the premises described, were overflowed and damaged by water standing thereon.
    The defendants offered evidence which proved, and it was admitted at the trial, that Thomas Williams originally owned all the premises belonging to the plaintiff and defendants, and that, in 1831, he conveyed to Fay and others the entire premises, including the land and pond above described ; that Fay and others, by the deed above mentioned; conveyed the premises described in the writ to the plaintiff, in which deed there was no grant or conveyance of any watercourse or right of drainage, the same being a common warranty deed, conveying the described premises with their appurtenances, &c.; that Fay and others, on the 1st of October, 1833, conveyed to the defendants all the land and premises granted by Williams, except the tract so conveyed to the plaintiff, and some small parcels previously conveyed to other persons; so that both the plaintiff and defendants claimed under a common grantor, by deeds bearing date within twenty years prior to the date of the writ.
    The defendants offered evidence that the pond was not fed by a watercourse or running stream, but was a mere hollow or low place, into which, in seasons of heavy rains or melting snow, the water collected from the surrounding higher lands, where it became stagnant; that there was no outlet thereto, through which the water usually ran; that there was no watercourse, or stream of water, or place where water usually flowed, running through the plaintiff’s land, and never had been; that the plaintiff’s land, lying easterly of the pond, was part of a tract of low land which sloped gradually towards the defendants’ land, at the rate of about nine inches in a hundred feet, except on the northerly side, where the land was considerably higher; and that all the water which came into the pond from the plaintiff’s land was merely the common surface water which ran off in times of heavy rains or freshets, not confined to any particular channel, but spread over the entire face of the land.
    The defendants also put in a petition to the board of health of the town of Chelsea, dated in the summer of 1849, signed by the plaintiff and others, praying to have the pond filled up, as a nuisance; and a vote of the board of health thereon, directing the defendants to abate the same as a nuisance; and it was proved, that the filling up complained of by the plaintiff was done by the defendants in pursuance of such order of the board of health, with the approbation of the chairman and other members of the board; and that the plaintiff was sometimes present while the work was advancing, and made no objection.
    The plaintiff offered evidence to show that, by such filling up and obstruction, his land and houses had been injured and greatly diminished in value.
    To meet this evidence, the defendants called witnesses to prove that but little or no injury had been occasioned to the plaintiff’s houses and land, and that the same had been, in fact, benefited and increased in value thereby.
    After the defendants had closed their evidence, the plaintiff then called a witness for the purpose of showing that the plaintiff’s land and houses had not been so benefited and increased in value, but were greatly injured; but, on examination, it appearing that he was not an owner of, or dealer in, real estate, in that vicinity or elsewhere, and possessed no other peculiar means of knowing the value of the property in question, the judge, in that stage of the trial, refused to receive the evidence.
    The judge instructed the jury, among other things, that inasmuch as twenty years had not elapsed since the plaintiff took his deed from the same persons under whom the defendants claimed, he could not claim any rights against them by prescription, or adverse user, but that his rights were to be determined by his deed, and by the state of things as they were at the time -of his purchase ; that, if there was a watercourse or stream of water running through the land conveyed, the right to the continued flow thereof would pass to the plaintiff under his deed, as parcel of his grant; that, if there were no such watercourse or stream of water, the plaintiff could not claim a right of drainage or flow of water from oil his land on to and through the defendants’ land, merely because the plaintiff’s land was higher than the defendants’, and sloped towards it, so that the water which fell in rain upon it would naturally run over the surface in that direction ; that the petition to the board of health of the town of Chelsea, signed by the plaintiff, and the acts and doings of the board of health thereunder, operated as a license or authority to the defendants to fill the pond, and that, for so doing, the plaintiff could not recover damages in this action against the defendants ; and if the jury were satisfied that the plaintiff had sustained no damage except that occasioned by filling up the pond, their verdict must be for the defendants ; but that the petition and proceedings thereunder would not operate as a license or authority to stop and fill up a watercourse, in addition to the pond ; and if the defendants had filled or stopped up a watercourse to which the plaintiff was entitled, he could recover such damages as he had suffered thereby : — that the plaintiff must, therefore, prove, to the satisfaction of the jury, the existence, at the date of his deed, of a watercourse or stream of water, flowing from his into the defendants’ land, as set forth in his writ; that a watercourse is a stream of water, usually flowing in a definite channel, having a bed and sides or banks, and usually discharging itself into some other stream or body of water; that, to constitute a watercourse, the size of the stream was not important, — it might be very small, and the flow of the water need not be constant, — but that it must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes; and it was a question of fact for the jury to determine, upon the evidence before them, whether any such watercourse was proved to have existed.
    
      On the question of damages, the judge instructed the jury, that they should take into consideration the evidence on both sides bearing on this point; and if they were satisfied that the filling up had actually benefited the plaintiff’s estate, in any particular, they would, in assessing the damages, make an allowance for such benefit, and give the plaintiff such sum in damages as they found, upon the evidence, would fully indemnify and compensate him for all the damage he had actually sustained.
    The jury found a verdict for the defendants; and the plaintiff, feeling aggrieved by the foregoing rulings and instructions, alleged exceptions thereto.
    
      W. L. Walker, for the plaintiff.
    
      C. G. Ripley, for the defendants.
   By the CoüRt.

The instructions were strictly correct, and well adapted to the case. Exceptions overruled.  