G
having brought an action against B. for flowing his meadow
showed no title to the land flowed, except a deed dated in
1831, and no possession prior to that time. B. showed that
G.'s meadow had been flowed prior to 1831 by a dam over
which he (B.) had exercised control since 1868, and claimed
that his right to flow B.'s meadow would be presumed, and
that the burden of proof was on G. to show that he had
acquired a right to hold his land free of water. Held, that
the burden of proof was on B. to show that he had a right to
flow as claimed by him
CASE
for flowing the plaintiff's meadow, situated on the shore
of Jenness pond in Northwood. The declaration alleged that
the defendant, ever since the first day of January, 1867, had
maintained, kept up, and continued a mill-dam in said
Northwood, across a brook forming the outlet of said pond
and by means thereof has raised and kept up the water in said
pond, and thereby made it to overflow and drown the
plaintiff's meadow, whereby the plaintiff's grass
growing on said meadow was damaged, etc. Plea, the general
issue. It appeared at the trial that the dam named in the
declaration had existed since about the year 1828, and that a
dam had existed near the site of the present dam beyond the
memory of man, and that they were used originally to supply
water to a certain ancient saw-mill which was owned by the
father of the plaintiff in common with the father of the
defendant and others, each owner having the right to use the
mill one day in twenty-four for every share owned by him
during the life of the mill,---the father of the defendant
owning one share; and that for twenty-nine years last past
the defendant has drawn water from the same dam to supply his
shingle and clapboard mill, situated below the sawmill,
subject to the right of the owners of the old saw-mill, so
long as it was in use, and since 1869 to supply a grist-mill
also, having in 1868 and 1869 repaired and tightened the dam
(and, as the plaintiff claimed, raised it), and from that
time assumed control over it. It
did not
appear whether or not the defendant drew water from the dam
for a shingle and grist-mill during the time named in the
declaration differently from or in less quantity than before.
One of the claims set up by the plaintiff was, that the
ancient saw-mill was used almost entirely in the spring of
the year; that it consumed large quantities of water; and
that by its use the water was so drawn from the pond by the
end of May that the lands of the plaintiff on the shore of
the pond were left dry and free from water during the summer
months and the months of September and October. It also
appeared that the saw-mill was suffered by the owners thereof
to be disused and to decay, and that the same had not been
used since the year 1859 or thereabouts; and the plaintiff
claimed and offered evidence to show that after that time the
gate in said dam had been raised in the spring of the year,
and the water drawn off so that the plaintiff's land
continued to be left dry and free from water during the
months above stated, down to about the time the defendant
repaired the dam, when he refused to hoist the gate or allow
it to be hoisted, since which time the water has remained
upon the plaintiff's land during the summer months. The
defendant claimed that the plaintiff, claiming title under
his father, who owned one share in the mill, is estopped to
complain of any damage arising from its disuse; but the court
ruled otherwise, and the defendant excepted. The defendant
also asked the court to instruct the jury that the mere
neglect or refusal of the defendant to open the gate of said
dam under the above circumstances does not entitle the
plaintiff to maintain this action; but the court instructed
the jury that the law would be as stated by the defendant if
he did not maintain the dam: but the defendant having
repaired the dam and assumed control over it, he is liable,
unless he has a right to keep the water as he did keep it; to
which the defendant excepted. The plaintiff showed no title
to the land flowed except a deed dated in 1831, and no
possession prior to that time. The defendant offered evidence
to show that the dam had existed before 1831, and claimed
that it was substantially of its present height, while the
plaintiff claimed and offered evidence tending to show that
its efficient height was increased by the defendant when he
repaired it in 1868 and 1869. The evidence showed that the
dam had been used prior to and since 1831 to raise the water
upon the land claimed by the plaintiff, and that it had
raised the water to the full height of the dam at certain
seasons of the year; but the plaintiff offered evidence to
show (and no evidence was offered to contradict it) that the
land flowed was cleared up soon after 1831, had been mowed
every year afterwards down to the year 1868, and cranberries
had been picked every year down to the year 1868, and that it
had not been flowed down to that time during the summer
months and September and October, but that since 1868 the
plaintiff had not been able to mow said meadow, nor pick any
cranberries upon it, except a few in a boat in the fall of
1868; and the evidence tended to show that the cranberry
vines had all been killed, and also the trees upon that part
of the meadow claimed to be flowed, and that it had been
covered with water substantially the
whole
season. The defendant claimed that having proved that the
land had been flowed prior to 1831 by the dam, of which he
had exercised control since 1868, the right of the defendant
to continue the flowage is to be presumed, and that the
burden is on the plaintiff to show that the defendant's
right to flow the land had been lost or modified, or that the
plaintiff has acquired a right to hold the land free of the
water; but the court charged the jury that there is nothing
in the fact that the title of the defendant is older than the
title of the plaintiff, but the defendant must still make out
his right to flow the land by proving twenty years'
adverse use in the manner complained of; to which the
defendant excepted. The defendant showed title to an
undivided half of the land upon which the dam and saw-mill
stood; but there was no evidence of any right in the
defendant to flow the plaintiff's land, except such as
had been gained by prescription. The defendant requested the
court to instruct the jury (1) that the extent of the
defendant's right to flow the shores of Jenness pond will
be the height to which a dam of the same height as that which
the dam he has sustained more than twenty years would flow,
although some part of the time, by leaking and want of
repair, the dam has not kept the water to its original
height; and that the owner of such a dam may repair it and
thereby keep the water up uniformly; [(2) and that if the
jury find that the defendant, or the persons from whom he
derives his title, did, more than twenty years before the
date of the writ, build or maintain a dam calculated and
intended to raise the water as high as the top of the same,
and did from time to time repair and tighten said dam so that
the same did so raise the water, the right to keep the water
as high as the top of the dam is not lost by the dam becoming
leaky and out of repair, but the owner might at his pleasure
repair and tighten the dam;] (3) and that the existence
thereof, with mills in actual use, and the frequent flowage
of water to the height of the dam, was notice to the
plaintiff of the claim and right of the defendant to
maintain, repair, and tighten the dam, and that the right of
the defendant was maintained, notwithstanding the dam from
time to time became leaky and insufficient to keep up the
water long at a time; (4) also, that a mill-owner may adopt
improved machinery in his mill, which takes less water to
carry it than that in use before, although the effect of this
may be to keep a higher state of water in his pond; and that
this defendant had the right to substitute other machinery,
and that which would use less water or use it less rapidly,
for the old saw-mill, provided he did not raise the water
above the top of his ancient dam; (5) also, that under the
present declaration the plaintiff cannot recover for damages
caused, not simply by the maintenance of the defendant's
dam, but by the improper use of it at certain seasons of the
year, or by the omission to withdraw the water so rapidly or
so early in the season as the defendant ought. The defendant
excepted, because the court did not give these instructions,
except the portion enclosed in brackets, and because the
court added thereto the following: "that is to say, if
he had once gained the right he would not lose it by letting
the dam get leaky and,
