Whitcher v. State

Citation181 A. 549
PartiesWHITCHER v. STATE et al.
Decision Date05 November 1935
CourtSupreme Court of New Hampshire

Transferred from Superior Court, Strafford County; Sawyer, Judge.

Petition for declaratory judgment by Harold P. Whitcher against the State of New Hampshire and others. Case transferred without rulings upon an agreed statement of facts.

Case discharged.

Petition under the provision of chapter 86, Laws of 1929, for a declaratory judgment, defining the rights of the parties in the use of the waters of North River pond, a public water, situated in the towns of Nottingham, Northwood, and Barrington and the counties of Strafford and Rockingham. Transferred without rulings by Sawyer, C. J., upon an agreed statement of facts. So far as they are material to the decision of the case, the agreed facts, with certain others stated in argument and understood to be conceded, appear in the opinion.

Leonard C. Hardwick, Burt R. Cooper, and Conrad E. Snow, all of Rochester, for plaintiff.

Francis W. Johnston, Attorney General, and John P. Carleton, of Manchester, for the State.

Robert J. Peaslee, of Portsmouth, and John H. Sanders and Robert W. Upton, both of Concord, amici curiæ.

PAGE, Justice.

The case is titled erroneously. The state is not a party. The petitionees are the Attorney General and three individuals owning lots on the shore of North River pond. No title or right claimed by the state need here be adjudicated, and remarks in this opinion relating to any title or right of the state are dicta. The rights involved are solely those of the plaintiff and the three littoral owners who are defendants. The latter have certain private rights as shore owners; in common with others not such owners, they have also certain rights as members of the public. It would seem that the three individuals are competent to represent their public rights without the intervention of the Attorney General either as a party or as their counsel. No judgment against other members of the public would appear to be possible from the fact that the Attorney General was sought to be made a party. He could be sued no more than the state. Bow v. Plummer, 79 N. H. 23, 104 A. 35. The only defendants are the littoral owners.

North River pond, in its natural state, was a great pond in which the general public had the rights incident to such waters. More than seventy years ago the plaintiff's ancestor in title, owner of a mill privilege on the stream issuing from the pond, erected a dam at the outlet of the pond which raised the level of the water seven feet. That dam and one or more others in succession have since then been maintained at that height except during such times as replacements were being constructed. Rights of flowage to the level of the dam were obtained by deed from certain of the owners of the littoral of the pond, and the land of the other littoral owners has been flowed since that time in accordance with the use to which the mill privilege meanwhile has been put.

To the extent of the user, it seems to be conceded that, as against the littoral owners who made no grant, and their successors in title, the plaintiff has by prescription a right of flowage for the benefit of his dominant tenement. Griffin v. Bartlett, 55 N. H. 119. But no such prescription can be claimed by the plaintiff as against the public rights of fishing, fowling, flotation, bathing, or taking ice. State v. Franklin Falls Co., 49 N. H. 240, 254, 6 Am. Rep. 513; Collins v. Howard, 65 N. H. 190, 18 A. 794; State v. Welch, 66 N. H. 178, 28 A. 21. Nor can there be any estoppel because of laches or neglect of the general public to exercise their rights. State v. Hutchins, 79 N. H. 132, 139, 105 A. 519, 2 A. L. R. 1685. There does not appear to be any legislative grant, which would be the only way of effecting a diminution of public rights for the benefit of the owner of the Whitcher property. Concord Manufacturing Co. v. Robertson, 66 N. H. 1, 6, 12, 22, 25 A. 718, 18 L. R. A. 679.

It is a matter of common knowledge that the primary, if not sole, purpose of such a dam is to impound waters at times of unusual run-off and to draw them off for the use of mills during periods of subnormal flow. Equalization of flow to enable mill wheels to turn in summer and autumn, when nature might leave them idle, is well recognized to be useful to manufactures and indirectly for the benefit of the public as a whole.

The object in this instance seems not to have been otherwise. The user has been consistent with that intention except at such times as the plaintiff has not needed the power. The dam has a gate, and the successive owners have controlled the gate for the purpose of letting water down to their mill privileges below, where another dam holds back the immediate millpond. Prior to 1905 the power was used to run two plants, a gristmill and a woodworking mill. In that year the gristmill was discontinued, but the woodworking mill was run by water until 1925, since when it has been operated by a gasoline engine. The bulkhead and waterwheel at the lower dam have now rotted, and there has been no water in the lower pond since about 1928. Before the mill can be operated again by water power, there must be a new lower dam, penstock, and wheel. Prior to 1918 the plaintiff and his predecessors drew water through the outlet dam as needed. The summer use generally reduced the water of the lake gradually to its natural level. From the middle of June flats began to be exposed, as well as an island in the middle of the lake. As the water receded, abutting owners who used their lands for pasturage, extended their fences over the exposed shore to the water line. At low draft, the Boody Flat, of about three acres in area, extending some four hundred feet, exposed soft mud. The water remained at this low level until raised by a heavy rainfall.

From 1918 to 1925 the plaintiff regularly drew water, but the level of the lake remained at or near maximum. Since then he has drawn no water for use at his mill. In 1930 the outlet dam needed repairs, and in August of that year the plaintiff drew the water down to the natural level and started his repairs. Abutting owners, among them the defendants, sought by bill in equity a decree ordering the plaintiff to close the outlet and restraining him from lowering the waters. Upon the plaintiff's agreement to build a "permanent cement dam" to the height of the old, the injunction proceedings were dropped, but with the threat that, if the level was again reduced, further proceedings would be brought. In the face of this threat, the plaintiff sought definition of his rights.

The plaintiff at first contended that the defendants have no right to control his drawing at will from the reservoir, but has altered his ground in some degree. At present his contention is that the defendants may not interfere with his use of the reservoir by a reasonable drawing between the artificial and natural levels. The defendants claim to have the right to restrain him from regulating the flow by means of the gate in the dam, which would leave the plaintiff only a reasonable use of the natural flow from an artificially enlarged permanent great pond.

The issue is therefore confined to the use by the plaintiff of the excess storage created by his dam. There is no contention that the dam is a nuisance that should be abated. On the contrary, the defendants claim in effect that the plaintiff must maintain the dam at his own expense for their sole benefit, and that he shall be deprived without compensation of the beneficial use of his property and be at the cost of maintaining it. They do not so state their contention, but that is their real meaning. So restated, and we think correctly, their position becomes so doubtful that it can be sustained only upon clear grounds of reasoning.

The defendants do not attack the right of the plaintiff and his predecessors to raise and maintain a dam. If that is a wrong done to their rights, they do not choose to have the wrong abated, but rather to have a wrong perpetuated because incidentally to its use they have derived at certain seasons benefits to themselves from the increased level of the reservoir, benefits which they now insist are rights of their own which they may exercise permanently at all seasons. In other words, they claim rights to enjoy permanently the artificial level of the pond, and not merely at such times as the reasonable demands of the plaintiff do not require the water to be drawn below that level.

The common law of New Hampshire with regard to rights in great ponds of ten acres or more (Dolbeer v. Suncook Co., 72 N. H. 562, 58 A. 504) is not the common law in England. The lord of the manor might exclude all others from a great pond entirely surrounded by the manor. But the immigrants to New Hampshire "brought, not the whole body of written and unwritten laws under which they had enjoyed rights and suffered wrongs, but only such as were suited to their condition and wants, consistent with their new state of society, and conformable to the institutions they intended to establish, and the general course of policy they intended to pursue." Concord Manufacturing Co. v. Robertson, 66 N. H. 1, 7, 25 A. 718, 721, 18 L. R. A. 679.

In this state any member of the public may exercise a common-law right to boat, bathe, fish, fowl, skate, and cut ice in and on its public waters. Whether or not this right is limited to ponds to which access may be had without trespass need not be decided in this case, since it appears that the public from time immemorial has had two approaches to the pond. Some technical theory of title has been found convenient to support this common right. The one adopted is that the king at first had the legal title to all the land, whether dry or covered with water, but that his ownership of the soil of great ponds was held subject to the public rights named. At the Revolution, the state succeeded to the legal title...

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