Shumway v. Simons

• Decision Date: 01 January 1827
• Citation: 1 Vt. 53
• Parties: JOHN SHUMWAY v. JOEL SIMONS
• Court: Vermont Supreme Court

1 Vt. 53

JOHN SHUMWAY v. JOEL SIMONS

Supreme Court of Vermont, Rutland

January, 1827

[Syllabus Material]

This cause came up upon exceptions taken before Mr. Justice HUTCHINSON, and the other Judges of the Country Court, at the last April Term. The action was trespass on the case, for overflowing the plaintiff's land, and was tried upon the general issue. The title of the plaintiff to the land in question, and of the defendant to the sawmill, dam, and mill privileges, by which the alleged injury was occasioned, were admitted on trial. The dam of which the plaintiff complained was erected across the outlet of a pond in Wells, adjoining the plaintiff's land, and the injury consisted in causing the waters to rise above their accustomed level, and flow back upon the surrounding lands. The defence rested upon a presumptive right to overflow the land, arising from a long use of that easement,

The defendant introduced evidence tending to show, that the first sawmill and dam were erected at this place, in 1774, and occupied till the owners were driven off by the enemy, in 1776 or 7.--That upon the establishment of peace, the mill and dam were repaired and occupied till 1792, when the waters were let off for the benefit of a mill below:--that within a year or two after this, Elkanah Cobb, erected another mill and dam, which raised the waters of the pond higher than at present:--that the flooding of the land being deemed injurious to health, this dam was pulled down by the inhabitants of Wells:--that it was afterwards rebuilt by Cobb, to its present height, and so remained until destroyed by fire, in 1797 or 8:--that in 1805, Wm. Potter deriving title under Cobb's estate, erected another mill and dam (the latter of equal height as the one last aforesaid) which was kept up and occupied constantly, as business required, until the defendant purchased of Potter, in 1817, with an exception of only two or three years, when the dam was kept up partially, between the months of May and October:--that ever since the defendant's purchase, he had used and kept up the dam to its present height, and that, in 1820, he erected a new dam of the same height as the one preceding.

To rebut this evidence, the plaintiff produced evidence tending to prove, that under a certain act of the Legislature, passed in 1806, for the purpose of lowering the waters of this pond for the preservation of health, the select men of Wells, had annually about the 1st day of May, for several years, from 1807 to 1813, raised the waste gates or pulled up a part of the dam to let off the water. And that in this way, they had sometimes reduced the pond to its natural level, by about the 1st of June; but in many instances the gates, after a few days, were again shut by occupiers of the mill, who continued business while the water lasted:--that the plaintiff, and those under whom he claims, had cut hay upon the land in question, at various times, for forty years; and about twenty-five years ago, had drawn timber upon it, and fenced it to keep cattle from it; and that it was mowed nearly every year, except 1816, when it was pastured, till 1818; since which time, and especially after the defendant's present dam was erected, the land had been constantly overflowed, so that all use of it by the plaintiff, had been lost.

The defendant contended, and requested the court to charge the jury, that if the defendant and those under whom he claimed had for fifteen years kept up the dam to its present height, it was evidence from which a grant or title to the easement should now be presumed; and that such presumption was not affected by the occasional suspensions or interruptions in the exercise of the right, as appearing in evidence, because they were not occasioned by any prohibition or interference of the plaintiff, but by the act of the select men, in preservation of health, or other sufficient causes wholly disconnected with any private right of the plaintiff. The court refused to charge as requested, and instructed the jury to the following effect:--" That by analogy to the statute of limitations, a presumptive right or easement, like the one set up by the defendant, might be acquired by the uninterrupted enjoyment...