
    Herndon Chalk, et al., vs. Samuel McAlily.
    Practice— Continuance — Casements—Adverse use — Backing water in channel of stream — Damage—Oases approved.
    
    The 23d and 25th rules of Court give directions to parties in reference to motions for continuance, but impose no restraint upon the discretion of the Court.
    Where one backs water by his mill-dam on another’s land, the use, if long continued, should, it seems, be considered adverse, in the absence of proof that it was permissive.
    
      Garrett vs. McKie, 1 Rich. 444, as understood by the Court, approved. Backing water within the channel of a stream, from which no appreciable damage results to the owner, is not of itself a legal injury which will sustain an action.
    BEFORE WHITNER, J\, AT CHESTER, EXTRA, JULY TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    
      “ Tbis was an action on tbe case to recover damages for tbe erection of a mill-dam on Sandy Eiver, whereby, as was alleged, tbe water was raised above its natural level, causing plaintiffs’ lands to be overflowed and tbeir mill to be prevented or retarded in its operation.
    “ Tbe parties owned lands on tbe river, tbe dividing line being over a mile above, defendant’s mill-dam, and tbe sites of tbe two mill near two miles apart. The stream was sluggish, having but little fall and high banks.
    “ On tbe lands owned by defendant, there bad been erected a mill and dam, in tbe years 1830 — ’31, and in operation ever since, except for a brief period, when rebuilt in 1853. Much of tbe bottom land of defendant bad been advantageously cultivated, being situated between his dam and upper line.
    “ The first suit brought for the alleged injury was by George Chalk, March 11, 1854, who was then' proprietor of the lands and mill now owned by present plaintiffs, his heirs at law. A cause of complaint was the increased elevation of the new dam. That suit abated by the death of the plaintiff, which took place the 18th November, 1855. Some time in the year 1854, defendant reduced the height of the dam ten inches, though it was in proof he had. given instructions to his workmen to confine the structure of the dam within former limits. March 8th, 1856, present suit was brought, an intermediate suit by the executors of George Chalk having failed on demurrer. The mill now owned by plaintiffs, had 'been erected long before the defendant’s, above and on the same stream. Between these mills the plaintiffs owned lands on each side of the stream, though at the upper mill-seat the lands were owned, on- the one side by plaintiffs, and on the other by a Mr. DeGraffen'reid. At this place two mills were erected, a saw and grist mill, supplied out of a common dam, and by an arrangement between the parties, the latter mill, in which plaintiffs were interested, was only to be used when necessary to do the grinding of the proprietor, or when the supply of water would admit the-running of both mills.
    
      “ It was a tub mill of very simple structure, had been very little used in later years, and is not at all used now. The saw mill, on the contrary, was much used, and was' situated directly in the main channel. The water from the grist mill had been discharged formerly by means of a small canal, leading into the channel of the stream. This canal was obstructed at its mouth and much filled up at other points. With these lands, as is found 'frequently, there was a greater elevation at the banks. They had been cultivated with a varying success, and difference of opinion existed on the part of witnesses, as to the fact of any injurious effect resulting from back-water.
    “ The verdict was for the defendant, and in my judgment j was well authorized by the evidence. The plaintiffs not only 1 failed to establish that they had sustained any actual injury j from the erection of defendant’s mill-dam, but I thought still j more conclusively did it appear that the defendant had a' prescriptive right to the enjoyment.
    “ In reference to the first ground of appeal, I need only say that, for the first time, in this case I was given to understand that the twenty-fifth Eule of Court, only operated upon the party who applied a second time for the continuance of a cause. In the language of this Eule, ‘ after the first term,’ I required ‘ a party applying for a continuance on account of the absence of a witness,’ to 1 set forth in addition to the requisitions of the twenty-third Eule what he believed the witness would prove.’ The case was expected to occupy at least two days, an extra term was ordered very much in consequence, and the absent witnesses resided in an adjoining District. Further, as to the hardship of being ruled to trial, I desired plaintiffs’ counsel to print as part of the brief, the amended affidavit, setting forth the facts expected to be . proved by the witnesses.
    “I do not know to what witnesses the plaintiffs' have reference in the second ground of -appeal. I have no note of such a question being made, and hence presume I must have concluded none such was. intended. Opinions of some witnesses, after being interrogated as to the facts, were freely given on each side and without objection; occasionally a witness was on the stand who had very little or no information on the subject, though asked for an opinion; in case of objection, on finding such witness had no reason to give on which to base an opinion, his opinion was not heard. I am satisfied it was only to witnesses of this class that the objection was raised.
    
      “Tbe third ground of appeal may not be correctly apprehended. The jury were distinctly instructed that, to create an easement such as that set up by defendant, there must have been an adverse, continuous, uninterrupted use for twenty years at least, the character of the use to depend on the fact ascertained by the jury. Counsel may perhaps more successfully indicate, before another tribunal, the proof on which so strong reliance is placed that defendant, in this case, could not set up a right by prescription, and that the1 jury should have been so charged.
    “Upon the other grounds of appeal, I may say, generally, that notwithstanding differences among the witnesses, I considered it pretty well established that the water in the channel of the river along plaintiffs’ land, was raised by the dam some inches, above its natural level. This, it was insisted in argument, though confined within the banks and extended to a single inch, without further injury, gave to the plaintiffs a sufficient cause of action. I did not feel myself at liberty to sustain such a doctrine, especially since the case of Garrett v. McKie, (1 Rick. 444.) With that case before me, the jury were fully instructed in conformity with the authorities arid' illustrations thence derived. The dam being on .defendant’s land was rightful, unless he had thereby thrown the water back injuriously upon the plaintiffs’, either as to their lands' or mill. Was the land in .consequence overflowed, made wet, rendered incapable of cultivation, or any effect whatever produced and clearly to be traced to this cause, resulting in injury to the plaintiffs, were the inquiries addressed to the jury. These questions they were requested to solve from facts established by proof, or by such conclusions as might be fairly authorized thereby. In reference to the natural flow of water within the channel, I adopted the sensible view, suggested by Judge Story, 1 that there may be and must be allowed of that which is common to all, a reasonable use; the true test of the principle and extent of the use, is whether it is to tbe injury of the other proprietors or not.’ That it was not enough to maintain this action that it should simply appear the water was raised above its natural level if confined entirely within the banks or channel of the stream, unless some injury or special damage was also shown. When I had concluded my instructions to the jury, my attention was called to some of the evidence supposed to have been overlooked or misapprehended on points deemed material, and after a reference to my notes, I was further requested to give further instructions in terms suggested by counsel. These I required to be submitted in writing, and they were furnished in the following words: ‘ That if the jury believe that the dam will cause the lands- of plaintiffs to overflow sooner, to remain longer under water, and fill up the ditches and races, that then that would be an injury in law.’ I declined to adopt the language suggested or add any thing on that branch of the case to what had been said. I thought and said that a margin sufficiently broad had been furnished for an intelligent jury to meet the case presented. I preferred to present general principles, and leave their application where it properly belonged.”
    The plaintiffs appealed, and now moved this Court for a new trial, on the grounds:
    1. Because his Honor erred, as is respectfully submitted, in requiring the plaintiffs, on the first application for a con tinuance of their case, to state what the absent witnesses would prove; and then still, after they had so stated what those important witnesses would prove, ordered the case on to the prejudice of the plaintiffs’ rights.
    2. Because his Honor erred, as is most respectfully submitted, in refusing to permit the witnesses of the plaintiffs, who had viewed the bottom lands and mill of the plaintiffs, on Sandy River, to state that they were, in their opinions, injured by the erection of the defendant’s dam on Sandy River below, from the backing- of the water on the land and mill of the plaintiffs by said dam.
    8. Because the defendant, and those under whom he claims, cannot claim by prescription in this case,' as the easement enjoyed in flowing the water back on the lands and mill of the plaintiffs, was permissive, and not adversely claimed by. those under whom the defendant claims, and so his Honor should have charged the jury, which was not done.
    4. Because his Honor charged the jury that the act of the defendant, and those under whom he claims, in flowing back the water on the' plaintiffs’ lands and mill, as long as the water so flowed back remained within the banks of the natural channel of Sandy River, was no legal injury, in which it is most respectfully submitted there was error in law.
    5. Because the evidence given in the case clearly showed ■ that the mill and bottom lands of the plaintiffs, on Sandy River, were certainly injured, and the verdict should have been for the plaintiffs.
    6. Because his Honor, on being requested so to do by plaintiffs’ counsel, should have charged the jury that if they should be of' opinion that though the water which flowed back on plaintiffs’ lands and mill by the defendant, and those under whom he claims, remained within the banks or channel of Sandy River, still if they should be of opinion that it caused injury -to the plaintiffs by causing the water sooner to overflow the lands and mill, and cause the water to fall more slowly, and to All up the channel and ditches more rapidly, it gave right of action — this his Honor declined to do, in which it is submitted there was error.
    
      7. Because tbe verdict is. contrary to- law and tbe evidence in tbe cause, and should be set aside and a new trial granted.
    Thomson, for appellant.
    Witherspoon, contra.
   Tbe opinion of tbe Court was delivered by

Wardlaw, J.

We will not pass tbe first ground of appeal unnoticed, altbougb appeals from tbe discretion exer-ercised by a Circuit Judge, in rejecting motions for a continuance, bave been so often discouraged bere, that it may seem idle to say another word on tbe subject. Tbe twenty-tbird Buie of Court imposes no restraint upon tbe Judge, but gives directions to parties; it does not declare that wbat is there prescribed shall avail to effect a continuance, but that less need not be expected to serve. Tbe same observations apply to tbe twenty-fifth Buie. Its words show that it refers to any term after tbe first, not to a renewed application by a party who before bad obtained a continuance. Discretion exercised at a former term must be taken by a Judge, at any succeeding term, to bave been properly exercised; and only as it may affect bis opinion of tbe diligence or good faith of a party who applies to him for continuance, is it material for him to know upon whose application a former continuance was granted. When counsel of experience give tbe prominence of tbe first place to such a ground of appeal as tbe first one in this case, it is bard to resist a suspicion, that tbe same want of confidence which ought to bave been felt in tbe first, did extend to all that followed. We bave however carefully read tbe mass of testimony which has been sent up, bave listened to tbe zealous arguments of the plaintiffs’ counsel, and bave examined tbe full notes, printed and written, which be has submitted.

The second ground of appeal is answered by the Eeport.

The Eeport shows too, in reference to the third ground, that an adverse, uninterrupted use for at least twenty years, was required by the instructions, and the objection, made in argument here, is that the use should have been deemed permissive, because there was not sufficient evidence that it was exercised with the assertion of right. It was properly submitted to the jury to judge of the force of the evidence, and this Court cannot perceive that the jury erred in finding that a defendant, who backed water by a substantial dam, for the propulsion of permanent and expensive machinery, showed that he claimed a right to do what was so long continued, and. so essential to his' interest. Use, in derogation of another’s rights, in the abseuce of evidence to show a permissive character, is-ordinarily presumed to be adverse, after it has continued long unquestioned. If, in a case like this, there should appear such permission of the use as would show a parol license under which money was expended in improvements, much deliberation would be had before a withdrawal. of the license should be allowed to impair the value of the improvements. But it is said for the plaintiffs, that the use was a silent, insidious invasion, which attracted no attention, and therefore should not acquire the rights which result from an open, notorious possession. It was to some extent an overflowing of soil — visible and continuous; and if it was half so hurtful to the plaintiffs, or their ancestors — as for them it is now said to have been — it could not have escaped notice and complaint. Upon the supposition that the acts done by the defendant are materially prejudicial in any way to the rights which have devolved upon these plaintiffs, the finding of the twenty years’ use by the defendant, under the instructions which were given to the jury, would have been conclusive of the case, if no other question had been submitted. But there was another question, which brings us to the consideration of the remaining grounds of appeal. The jury may have found that the use was not such as the instructions required that it should be, to protect the defendant; yet they may, under the further instructions, have found that the plaintiffs sustained no damage from the water backed in the channel of the stream, and so may have rendered a verdict for the defendant because the banks were not overflowed within the plaintiffs’ line. Eefering under this head to what is said in the report, we see that the case of Garrett vs. Kie, (1 Rich. 444,) was taken as a guide in the circuit, and that the - effort of the plaintiffs here has been to procure an overruling of that case.

If that case is understood to mean that, in an action for backing water, special 'damage must be specified in the counts wherever' the banks of the stream in question have not been overflowed; or that, without' regard to the harm done .by backing within the channel, such backing is always defensible, then we dissent from such conclusion. But if it be understood, as was meant to be decided, that backing within the channel, from which no' appreciable damage results, is not of itself a legal injury which will sustain an action, then we adhere to it. The proposition, which thus we approve, results, we conceive, from the reasonable use of water, which every one through whose land it flows is authorized to enjoy,- considered in connection with the necessities of machinery upon sluggish streams and in a flat country. It is said that water must be allowed to flow as it was wont' to do, and to pass undiminished and undefiled to the proprietors below. Yet a dam may be erected which shall spread the stream over a surface far beyond its natural extent, and so diminish by increased evaporation the quantity which would otherwise have passed down, or the limpid current may be polluted by saw dust, occasionally dropped ando whisked along in the foam of a mill tail. These, it is replied, are trifles about which the law does not care, occasioning no material detriment, and excused in consideration of tbe necessities and advantage of a mill.

In like manner, shutting down tbe gates of a mill wbicb is fed by a pond,- must necessarily lower tbe water in tbe channel below. And raising them must necessarily elevate tbe water. Such a mill cannot be worked at all, without disturbance of tbe natural flow, and such disturbance, in many instances, may be observed for several miles below a mill, upon some of tbe best mill streams of this State. Every such disturbance, either by elevation or depression, is forbidden by tbe extreme principle wbicb would require us to bold that any interference with the order of Nature within another’s territory, constitues a legal injury, without consideration of damage. A temporary, yet frequently recurring interference may differ in degree from a constant one, but not in principle. A fluctuating condition of a stream might, under various circumstances, be quite as harmful as either a permanent elevation or a permanent depression of tbe water’s surface. An invasion of right wbicb is justified in regard to a proprietor below a mill, cannot without some difference in principle, or in consequence, be tbe subject of action by a proprietor above. In both cases it is safe to limit tbe invasion to an extent wbicb does no barm; and where it is in analogy to other reasonable-enjoyments of flowing water, so limited, tbe law may well permit considerations of general expediency to excuse it. If, however, any appreciable damage has been done by tbe invasion, tbe limit has been exceeded, and an action lies.

If a shoal has been covered or rendered less valuable, if a ford has been deepened, if machinery has been clogged, if tbe digging of minerals has been impeded, if sickness has been occasioned, if vegetation has been hurt, — if any actual damage has been done by tbe backing of water within tbe channel on another’s land, then cause of action has been given. In conformity with these views tbe jury, in tbe case before us, were instructed to inquire whether the lands or the mill of the plaintiffs had .been damaged — whether the land had been overflowed or made wet, or rendered incapable of cultivation, or whether any effect prejudicial to the plaintiffs had resulted from the acts of the defendants. The verdict has answered all these inquiries in the negative. And a review of the evidence satisfies us that such answer was well justified. There was then no need of the Judge to give, in conformity with the writing submitted by the plaintiffs’ counsel, farther instructions, leading to speculation concerning what would occur in future, as to which the instances that were specified in the writing, if the apprehension of them deteriorated the value of the plaintiffs’ property, had been embraced in the principles already laid down. Inva•sions of proprietary rights, especially of that kind which, if long indulged, will ripen into easements, should be jealously watched and sternly restrained by the law. But if they'are harmless, they can at most give only easements which do not hurt, and, whenever they become prejudicial, they will become subject to another rule.

Actions like this ought not to be encouraged upon complaints of fanciful injury done to sublimated notions of exclusive territorial dominion.

Such actions sometimes proceed from rival interests or envious malignity.

The physical changes which our country undergoes in the progress from forest wildness to cultivated improvements are necessarily great; and when slight alterations of a stream are investigated, it is often hard to ascertain their existence, and harder to detect their causes. A verdict, finding even nominal damages for a plaintiff upon his allegation of a continued wrong done to his freehold, becomes evidence upon which future verdicts may be claimed, that in the end will compel a defendant to remove the imputed cause of wrong, even by sacrificing valuable interests. In this case it is probable tKat tbe banks of tbe plaintiffs have been covered by back-water for two incbes of perpendicular beigbt, and for a distance of one or two hundred yards above their line : tbe jury say that from this invasion of their extreme rights no damage has come to them; and in dismissing their action, we indulge the hope, that further developments and further exertions on their part will show that the deterioration of their mill and land, which they have ascribed to the acts of the defendant, has proceeded from causes either inevitable or within their own control.

The motion is dismissed.

O’NeALL, WITHERS, WhitNER, G-lover, and Muhro, JJ., concurred.

Motion dismissed...  