Murchie v. Gates

• Decision Date: 17 June 1886
• Citation: 4 A. 698,78 Me. 300
• Parties: MURCHIE and others v. GATES.
• Court: Maine Supreme Court

4 A. 698

78 Me. 300

MURCHIE and others

v. GATES.¹

Supreme Judicial Court of Maine.

June 17, 1886.

On motion and exceptions by defendant. The opinion states the facts.

A. McNichol and Geo. A. Curran, for plaintiffs.

F. A. Pile, for defendant.

EMERY, J. There was evidence tending to establish the following as facts: In the St. Croix river, at Calais, is an island near the American shore. This island, and the American shore for some distance above and below, were formerly one estate. As early as 1810 dams and mills were built across from the shore to the island at the upper end. The title to this upper mill privilege afterwards came to the defendant. In 1824 was the severance in the ownership. A conveyance was made of the land nearly opposite the lower end of the island, "with liberty to build a dam from the shore across to the island." The title to this lower privilege afterwards came to the plaintiffs. The owners of the upper privilege had, from time to time, during the last 40 years, deepened the channel leading to their mills, by removing rocks, etc. They had also, for at least 60 years, maintained asheer-dam, running from the upper end of the island, up the river, sheering out into the river. This sheer-dam, and the deepening of the channel, conducted more or less of the waters of the St. Croix towards the American shore, and down inside the island, which water would otherwise have flowed past outside of the island. For many years, at least 40, there were several mills on the upper privilege, between the shore and the island, which vented the water into the channel between the island and the shore. This flow of water down inside the island was the power for the mills upon the lower privilege. At the upper end of the island, upon the upper privilege, was also a mill called the "Franklin Mill," which vented water into the main river outside the island. This water, of course, would not then flow to the lower mills. In 1882 the defendant ceased using the inshore mills for a time, and diverted to the Franklin mill, and so down outside the island, the water that formerly flowed through the inshore mills, down inside the island to the plaintiffs' mills. For this diversion this action was brought, and the jury have found there was such a diversion of the water.

The defendant contended that the plaintiffs could only claim of right the natural flow of the water, and could not acquire by user, however long continued, a legal right to the surplus or extra water artificially led into the channel by the defendant's sheer-dam, and by the artificial deepenings of the channel. The judge, in effect, instructed the jury that the plaintiffs were entitled to all the water which naturally flowed in the channel between the island and the American shore, and which had been permitted to flow, and they had been accustomed to receive at their mills and privilege, through the series of years down to 1882. That series of years was admittedly more than 20. The defendant construes the language as meaning that the plaintiffs might be entitled to more than the natural flow of water; that they might become entitled by prescription to the flow of such water as had been artificially led into the channel. We think it may be construed to mean that the plaintiffs were entitled to only so much of the natural flow as had been permitted to flow, lessening rather than enlarging their rights. The defendant contended for a prescriptive right to divert the water from the plaintiffs; and, if applied to that contention, the instruction was in their favor. But we will examine the instruction as construed by the defendant.

If the plaintiffs, by a user sufficiently long and continuous, could acquire a prescriptive right to the accustomed flow of the water thus artificially led into this channel, the instruction is admittedly correct; but the defendant contends that the water-course inside the island was in fact artificial, and that no prescriptive rights can be acquired therein. The theory of prescriptive rights is that there was a grant made of them. It is presumed that what one has so long permitted another to enjoy he has granted to him. It would seem that a grant of water easements could be as readily presumed as a grant of any other easements. Such easements are valuable. Important interests often depend upon them. They are the ordinary subjects of grants. The uses of them are as permanent as in the case of many other easements. They can be as easily defined. There would seem to be no good reason for excepting them from the general rule as to prescriptive rights. If prescription is to obtain at all as a foundation of legal right, such a case as this would seem to be clearly within the principle.

We also think the case is within the authorities. In Belknap v. Trimble, 3 Paige, 577, Chancellor Walworth appositely said:

"A proprietor at the head of a stream, who has changed the natural flow of the waters, and has continued such change for more than twenty years, cannot afterwards be permitted to restore it to its natural state when it will have the effect to destroy the mills of other proprietors below, which have been erected with reference to such change in the...