Sheffield v. Collier

• Decision Date: 31 July 1847
• Docket Number: No. 12.,12.
• Citation: 3 Ga. 82
• Parties: Bryan Sheffield and others, plaintiffs in error. vs. Jesse Collier, defendant in error.
• Court: Georgia Supreme Court

3 Ga. 82

Bryan Sheffield and others, plaintiffs in error. vs. Jesse Collier, defendant in error.

No. 12.

Supreme Court of the State of Georgia

JULY TERM, 1847.

Trespass for overflowing plaintiff\'s land. Tried before Judge Warren. In Early Superior Court. April Term, 1847.

For the facts of the case, and the questions made and decided below, see the opinion delivered by the Supreme Court.

Taylor, Schley and De Graffenreid for the plaintiff's in error.

Mr. Taylor submitted the following brief of points and authorities:

Without the consent of the adjoining proprietors, one cannot divert the quantity of water below, nor throw bank upon those above, without a grant or an uninterrupted possession of twenty years. 3 Kent Com. 353; 2 John. Ch. R. 162.

The right to overflow the lands of another, is an incorporeal hereditament, and must exist by grant or prescription. Taylor vs. Hampton. 4 M'Cord R. 98; 1 Crabb Law of Real Prop. 251, 254, 264, 300, 301.

Every proprietor of land through which a water course runs, is entitled to the use of it, provided his own use be not inconsistent with the use of another, either above or below. Nor can the proprietor below, throw back water upon him above, without his license or consent. Omelvany vs. Jaggers, 2 Hill, S. C. R. 634; ib. 387.

To throw back water upon another's land is an easement, which can be created only by grant or prescription. 1 Crabb 300; 2 Black. Com. 121; Angell on Water Courses, 57. 58; Hewlins vs. Shippam, 11 Eng. Com. 207; 3 Kent, 321, 322, 353; 4 East. 107; Gilbert Evi. 112.

The right to overflow the lands of another is such an interest in lands as must be created by writing, under the first section Statute of Frauds. Thompson vs. Gregory. 4 John. R. 81; upon the fourth ground.

Towns, Reese, & Sullivan & Moore for the defendant in error.

By the Court.— Lumpkin, J. delivering the opinion.

This was an action of trespass tried before my brother Warren, at the last April Term, 1847, of the Superior Court of Early County.

Benjamin Collier, and his brother, Jesse Collier, the defendant, had been joint tenants of the land upon which the trespass wa3 alleged to have been committed. In September, 1843, Benjamin Collier sold and conveyed by deed his interest in the premises to one William Tuten, at the same time informing the purchaser that he had agreed with his brother that he might erect a mill on the land, and requiring of Tuten to see his brother and get his consent to the sale. This was done —Tuten had an interview with Jesse Collier, who agreed that Benjamin might dispose of the west half of the lot of land, upon condition that he should be permitted to cut as much timber off of the said west-half as should be necessary to build the mill, and to overflow as much land by backwater, as should be required for the mill. Tuten expressed himself satisfied with these terms, and the contract was accordingly consummated. In January, 1844, Tuten sold to the plaintiff, Bryan Sheffield, and told him of the privileges extended to Jesse Collier, but represented to Sheffield that they were to continue only while he, Tuten, owned the land. Sheffield inquired if this license was inserted in the deed, and, being answered in the negative, he said, that he cared nothing about it. He requested Tuten to say nothing about this trade. Collier had commenced constructing his dam and collecting the timber for the mill, when the last contract was made. It was proved that Sheffield must have known that Collier was erecting the mill, inasmuch as he owned a mill himself two or three miles below upon the same stream the road to which, from his residence, passed within one or two hundred yards of Collier's mill. Sheffield notified Collier, after he bought, not to overflow his land. There are some ten or fifteen acres of Sheffield's land covered by back-water, worth two or three dollars per acre. There is also a shoal or seat for machinery, very much injured by this back-water, and consequently the value of the entire tract is greatly lessened.

The Court charged the jury, that the parol license under which Jesse Collier acted, was sufficient to protect him from thetrespass, and on this direction they found a verdict for the defendant. Whereupon counsel for Sheffield excepted for misdirection.

This is a new question in our Courts, and I regret sincerely [1.] that, before writing out this opinion, I have not been able to procure Messrs. Gale and Whatley's very learned treatise on the Law of Easements, and Brooke's Abridged Licenses, where the doctrine involved is ably and fully discussed, as I infer from the late case of Wood vs. Leadbitter, 13 Meeson & Welsby.

The general rule, no doubt, as now settled is, that easements like all other incorporeal hereditaments, must be by deed. And it is laid down in Shepherd's Touchstone, p. 231, and the same principle is supported by the reported cases, that a license, or liberty, cannot be created or annexed to an estate of inheritance, except under seal. 4 M. & S. 565.

The rule that a parol license is revocable, admits of exceptions upon different grounds; and one is, where the license has been executed, in distinction from cases where it is executory only. In Winter vs. Brockwell, 8 East. Rep. 308, there was a parol license to put in a sky-light over defendant's area, (which impeded the light and air from coming to the plaintiff's dwelling, through a window,) and Lord Ellenborough, C. J., said, "that it was unreasonable that after a party had been led to incur expense, in consequence of having obtained a license from another to do an act, and that the license had been acted upon, that the other should be permitted to recall his license and treat the first as a trespasser for having done that very act." That the point was new to him when it occurred at the trial, but that he had since looked into the books and found himself justified in taking the distinction between a license which is executed and which is not countermand able, and one which is only executory.

In Liggins vs. Inge and another, 7 Bingham, 682, plaintiff's father, by oral license, permitted defendants to lower the bank of a river and make a weir above plaintiff's mill, whereby less water than before flowed to plaintiff's mill: held that plaintiff could not sue defendants for continuing the weir, on the ground that it had been executed. And Tindal, C. J., in delivering the opinion of the Court says—"Suppose A authorizes B, by express license, to build a house on B's own land, close adjoining to some of the windows of A's house, so as to intercept part of the light; could he afterwards compel B to pull the house down again, simply by giving notice that he countermanded the license? Still further, this is not a license to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like; which license, if countermanded, the party is but in the same situation he was before it was granted. But this is a license to construct a work which is attended with expense to the party using the license; so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss. It is a license to do something which in its own nature seems intended to be permanent and continuing. And it was the fault of the party himself, if he meant to reserve the power of revoking such a license after it was carried into effect, that he did not expressly reserve that right, when he granted the license, or limit it. as to duration. Indeed the person who authorizes the weir to be erected, becomes in some sense a party to the actual erection of it, and cannot afterwards complain of the result of an act which he himself contributed to effect."

There are four other English cases usually cited in support of the principle that parol licenses, under circumstances like the present are irrevocable, viz: Webb vs. Paternoster, reported in five...