Taggart v. Town of Jaffrey

• Citation: 76 A. 123,75 N.H. 473
• Parties: TAGGART v. TOWN OF JAFFREY.
• Decision Date: 05 April 1910
• Court: Supreme Court of New Hampshire

76 A. 123

75 N.H. 473

TAGGART

v. TOWN OF JAFFREY.

Supreme Court of New Hampshire. Cheshire.

April 5, 1910.

Petition by Arthur E. Taggart against the Town of Jaffrey for an assessment of damages caused by the taking of water by the town from Bullet pond, on an agreed statement of facts. Damages were assessed, and the question, and exceptions to evidence relating thereto, was transferred to the Supreme Court for decision. Case discharged.

Prior to 1902, water from Bullet pond, after passing through Grassy pond and along a natural stream, flowed in an artificial channel cut through some rising ground and thence along a natural depression past the plaintiff's premises. The water was diverted to this channel by a dam across the natural water course, and has flowed in this artificial channel for over 60 years. Who built it, and when and by whom the water was diverted thereto did not appear; but it was constructed and kept in repair to carry water to several mills below where the plaintiff lives. In 1888, the plaintiff took title to his premises, and built a house and outbuildings. There were no buildings on the premises before that time. From then until 1901 the plaintiff took water by pails from this stream for domestic purposes. In 1901, he constructed a ram which forced the water through pipes to his buildings. In the fall of 1902, the town of Jaffrey began to draw water from Bullet pond under the provisions of chapter 265, Laws 1901, and caused the alleged depletion of the water in the stream of which the plaintiff complains. When the plaintiff bought, he believed the artificial channel to be a permanent structure; and for 60 years or more it has appeared to be such, although it required annual repairing. The plaintiff claimed the rights of a riparian owner upon a natural stream.

Doyle & Lucier (Mr. Lucier, orally), for plaintiff.

Cain & Benton (Mr. Benton, orally), for defendant.

PEASLEE, J. 1. The waters flowing from Bullet pond were diverted from their natural channel more than 60 years ago, and have since flowed in the channel then prepared for them. The change was evidently intended to be permanent, and the present channel of the stream is now, for all legal purposes, its natural one. "It has often been decided, both in England and America, that water courses made by the hand of man may have been created under such conditions that, so far as the rules of law and the rights of the public or of individuals are concerned, they are to be treated as if they were of natural origin." Stimson v. Brookline, 197 Mass. 568, 83 N. E. 893, 16 L. R. A. (N. S.) 280, 125 Am. St. Rep. 382; Townsend v. McDonald, 12 N. Y. 381, 64 Am. Dec. 508; Magor v. Chad wick, 11 A. & E. 571, 586; Sutcliffe v. Booth, 9 Jur. N. S. 1037; 3 Farn. Wat. § 827b. Cases involving the rights of proprietors along artificial streams, as distinguished from natural streams running in artificial courses, are not in point. The distinction between the two has often been recognized. Murchie v. Gates, 78 Me. 300, 4 Atl. 698; Stimson v. Brookline, supra; Nuttall v. Bracewell, L. R. 2 Exch. 1; Wood v. Wand, 3 Exch. 748, 777. Rights in new courses for natural streams have been supported upon various grounds. "When a stream flowing through a person's land is diverted into a new channel, either artificially or by a sudden flood, affecting the rights of other riparian proprietors favorably, and the owner acquiesces in the new state of the stream for so long a time that new rights accrue, or may be presumed to have accrued, such acquiescence is binding, like a public dedication, and the stream cannot be lawfully returned to its former channel." Gould, Wat. § 159; Ford v. Whitlock, 27 Vt. 265; Burk v. Simonson, 104 Ind. 173, 2 N. E. 309, 3 N. E. 826, 54 Am. Rep. 304.

In some cases the mere running of the water for the prescriptive period, under conditions apparently intended to be permanent, has been considered sufficient to warrant a holding that the usual riparian rights along a natural stream have attached. Murchie v. Gates, 78 Me. 300, 4 Atl. 698; Gaved v. Martyn, 19 C. B. N. S. 732.

"There is a much more impregnable foundation [than prescription] upon which to put such decisions, and that is upon the ground of estoppel. If the landowner makes a change in the course of the stream which to all appearances is permanent, and holds out to the world the representation that such condition is permanent, he will be bound by his acts; and after other persons have acquired rights by changing their positions upon the faith of such representations, he will not be permitted to deny that they were true, or claim that the stream is not flowing in its true channel." 3 Farn. Wat. § 827c; Woodbury v. Short, 17 Vt. 387, 44 Am. Dec. 344; Lampman v. Milks, 21 N. Y. 505; Lammott v. Ewers, 106 Ind. 310, 6 N. E. 636, 55 Am. Rep. 746.

"If the landowner, having changed the direction of the natural stream through his land, were to suffer others who are entitled to use the water to expend money in reference to such use, under a belief that the new channel was to be permanent, and this were known to him, he could not afterwards change its course so as to injure the party who had expended his money. In these and like cases, whenever one who owns a water course in which another is interested, or by the use of which another is affected, does any act, or suffers any act to be done, affecting the rights of other proprietors, whereby a state of things is created which he cannot change without materially injuring another who has been led to act by what he himself had done or permitted, the court applies the doctrine of equitable estoppel." Shepardson v. Perkins, 58 N. H. 354, 356. Whether this case is fairly open to criticism because of an attempt to sustain the conclusion reached by inconsistent lines of reasoning (3 Farn. Wat § 827), it is not now necessary to inquire.

The rule is universal that riparian rights may be acquired along the artificial channel of a natural stream. Upon any of the grounds suggested, this plaintiff could maintain his position. There was a dedication. The stream had been changed in a manner to indicate that the alteration was permanent. There are prescriptive rights. It ran in this way for more than twice the period necessary to the presumption of a grant before the plaintiff purchased his tract of land. There is an estoppel. He relied upon the apparently permanent conditions when he made his purchase; and since that time, and acting upon conditions as they were, he has openly made the improvements which he says are now interfered with. That he has the rights of a riparian proprietor upon a natural water course cannot be open to serious question.

The cases relied upon by the defendant (Fox River Flour Co. v. Kelley, 70 Wis. 287, 35 N. W. 744; Lawson v. Mowry. 52 Wis. 219, 9 N. W. 280) are not applicable here. The law of Wisconsin is in harmony with that elsewhere. In a recent ease in that state many of the American authorities are quoted with approval, and the court declares the law to be that "the water course, though artificial, may have originated under such circumstances as to give rise to all the rights that riparian proprietors have in a natural and permanent stream, or have been so long used as to become a natural water course prescriptively." Smith v. Youmans, 96 Wis. 103, 70 N. W. 1115, 37 L. R. A. 285, 65 Am. St. Rep. 30. While in a case like this the right acquired includes the privilege of taking water for domestic use (Roberts v. Richards, 44 L. T. 271), the defendant is in...