Flint v. Union Water Power Co.

• Decision Date: 02 January 1906
• Citation: 62 A. 788,73 N.H. 483
• Parties: FLINT v. UNION WATER POWER CO.
• Court: New Hampshire Supreme Court

62 A. 788

73 N.H. 483

FLINT

v. UNION WATER POWER CO.

Supreme Court of New Hampshire. Coos.

Jan. 2, 1906.

Exceptions from Superior Court; Peaslee, Judge.

Action by Benjamin H. Flint against the Union Water Power Company. A verdict was rendered in favor of plaintiff, and defendant brings exceptions. Overruled.

The plaintiff's evidence tended to prove a record title to the premises (located in Wentworth's location) from 1851, possession and use by the various holders of the title, a customary control of the water in the Magalloway river adjoining the promises by the dam at Errol, operated by the defendants and their predecessors in title down to 1887, the building of a new dam at that time, and an increased flowage thereafter. The defendants' evidence tended to prove that the plaintiff's title originated in a tax sale about 1850; that in 1877 Coe & Pingree held the record title to Wentworth's location and to the Errol dam, and then conveyed to the defendants' grantors the land on which the dam stood, and "all rights of flowage of any lands belonging to us [them], or either of us [them], upon Lake Umbagog, and also upon the Androscoggin and Magalloway rivers and their tributaries, including, also, all right which we [they] have to flow the land of others by any of said dams, intending hereby to convey all right of flowage of any lands in said county of Coos, caused by any of said dams, wherever situate, above or below said dams, and however the right may have been acquired, whether by purchase, grant, prescription, or otherwise, to the end that the grantees may have and enjoy the same rights of flowage, and to the same extent over all said premises, as we [the grantors] now have the right to enjoy." At a view of the premises by the jury, the plaintiff called attention to a newly dug hole some rods from the river, to the water in the hole, and to its height as compared with the level of the river. A civil engineer testified that water would percolate through that soil, and that he dug the hole and found that the water in it stood on a level with the stream. To all this the defendants excepted. Subject to exception, the plaintiff testified that he relied upon the lowlands, which could be cropped without fertilizing, to keep up his light upland; and that the damage to him from water held back by the new dam more than by the old dam was $1,000 for the six years prior to the date of the writ

The defendants excepted to the following instructions given to the jury: "The evidence apparently shows that the plaintiff's title is a prescriptive one; but this does not render it any the less valid. He has had such possession and color of title as give him a right to recover damages if the defendants have exceeded their legal rights in the premises. And so the practical question for you is whether the defendants have flowed beyond what they have a right to. The defendants say that they have title by deed, and also a prescriptive right to flow as much as they have flowed. The deed to them from Coe & Pingree conveys the right of flowage by Errol dam. This means the right to flow as it was exercised at the time the deed was given in 1877; and that is the limit of the defendants' right as founded upon the deed." Instructions were also given as to what was necessary to enable the defendants to acquire flowage rights by prescription as against the plaintiff. The charge then proceeded as follows: "So whether this title is by deed or by prescription, it is measured by the extent of the use; and, as there is no dispute but that the use was substantially the same for more than 20 years, the practical question for you will be whether there has been a substantial increase of the flowage by the new dam. The question, as you will see, la purely one of fact for you to settle. Was the flowage for the 6 years just before March 11, 1903, substantially greater than that which the defendants had claimed and exercised the right to the enjoyment of for 20 years?" There was no exception to...