Opinion
June Term, 1864
B.F. Rexford, for the appellant.
D. Pratt, for the respondents.
The plaintiffs at the time of the erection of the dam by the defendant, were in the actual use and occupation of the premises, on which the mills in question were located, and they and those under whom they claimed, had been in possession of the same for quite a number of years prior to the erection of said dam. It was proved that the defendant erected the dam, and that by means of it the water had been set back upon the plaintiffs' wheels, thereby reducing the power thereof, and injuring the plaintiffs' mills. It cannot be denied that if these were the only facts in the case, the plaintiffs would be entitled to recover. Each of the parties had the right to use the waters of the stream on his own premises, for any purpose for which it might be legitimately used, and neither had the right by any erection on his own premises to interfere with such enjoyment to the prejudice of such other. (Angell on Water-Courses, § 340.) The only exception to this rule, that now occurs to me, is that where both parties draw water from the same dam, each has the right to continue to use the water, whatever the effect may be on the other, unless such other has acquired by grant or prescription, the right to an exclusive use, or to use whenever there is not water enough for both.
The learned author says (§ 340, cited supra): The maxim sic utere tuo, c., applies as well to setting back the water of a watercourse above the owner's land in the natural channel of the stream, as it does to an actual overflow of land. * * * No single proprietor without consent, has a right to make use of the flow in such manner as will be to the prejudice of any other, and that he has no more power to apply it to a purpose which occasions a return of the water on the land above, than he has to cause a diminution of the quantity below. He cannot alter the level of the water either where it enters or where it leaves his property.
BAYLEY, Justice, in Saunders v. Newman, says: If a person stops the current of a stream which has immemorially flowed in a given direction, and thereby prejudices another, he subjects himself to an action.
Any impediment, say the supreme court of Pennsylvania, in the stream caused by the defendant's dam, by which the plaintiff's mill is stopped from grinding in any state of the water, or is made to grind slower or worse than it otherwise would, is an injury for which the plaintiff would be entitled to damages. But it is unnecessary to cite authorities; the principle has been recognized too long to admit of controversy at this day.
The acts done by the defendant being prima facie actionable, it is necessary, in the next place, to ascertain whether the plaintiffs could, under the circumstances, maintain an action for the damages resulting from the injury. Before the code, the remedy of the injured party was by an action on the case. (Angell on Water-Courses, § 395.) That form of action could be maintained by his tenant in possession, and by the landlord or reversioner. (Same section.) Title was not necessary, unless the plaintiff sought to recover full damages for the injury to his property. From the very nature and necessity of the case, a temporary occupant must be entitled to sue; and as such occupant could only recover damages sufficient to compensate him for the injury sustained, an action must also be given to the reversioner, or the party sustaining perhaps the largest amount of damages would be left remediless.
It follows that the plaintiff would be entitled in this case to damages to an amount sufficient to indemnify for the injury to such interest as he had in the premises. But the plaintiffs in their complaint allege that they were joint owners of the mills, and they were bound to prove it. Possession is prima facie evidence of ownership of real estate. In 1 Cowen Hill's Notes, 353, it is said: "The mere possession of property, however recent, will enable the occupant to recover or defend against a stranger in ejectment, trespass," c.
But the defendants showed title in their ancestor subsequent to the deed from their ancestor to Messenger, and no title is shown out of him. It appears, however, that several persons were in possession after Luther Bowen left possession in 1835, and before the defendants went in. The defendants occupied the premises adjoining, and never made claim to the premises occupied by the plaintiffs. Under these circumstances, it seems to me that the law will presume the plaintiffs lawfully in possession, and entitled to recover damages for the injury sustained by them.
The plaintiffs, to prevent the defendant from alleging title to the premises, showed that the defendant's father was in the office at the time Edward Brown, one of the plaintiffs, purchased the premises on which the plaintiffs' mills are located, and something was said in presence of Bowen, about Brown having bought the land. The witness's impression was that Bowen said he had come to buy the land; he did not claim that he owned it. This is very loose evidence on which to rest an estoppel; but it cannot be said that it is not some evidence, and sufficient had it been submitted to the jury, to support a verdict finding the estoppel. The court was not requested to submit the question to the jury, and at the close of the plaintiffs' case, and after the defendant had put in their documentary evidence, "the court decided that as the evidence then stood, the defendants were estopped as matter of law from claiming the plaintiffs' premises, so far as the damage had been done to the plaintiffs' mills by the dam." To which ruling the defendants' counsel excepted. At the time this decision was made, no question could be submitted to the jury; the defendants had not as yet given any parol proof, and I cannot discover that the learned judge decided anything. It was an intimation to the defendants' counsel that if they did not give evidence that would do away the plaintiffs' evidence on the subject of estoppel, he would hold them estopped. The direction affected the rights of neither party, and unless the question is presented again in some other part of the record, the defendant must fail in attacking the judge on this branch of the case. But the judge did charge that the defendants were estopped from setting up and relying upon their title to the premises as a defense to the action; to which charge the defendants' counsel excepted.
Under this charge the jury were not at liberty to consider the question of estoppel as a question of fact. They were bound to consider the case, on the assumption that as matter of law, the defendants were estopped from asserting title to the premises. In this the court erred. The question belonged to the jury, and should have been submitted to them as a question of fact. But the defendant acquiesced in its being withheld, but insisted the instruction was wrong as a legal proposition. There was no dispute about the facts, and ordinarily it would be a question of law whether the facts proved, established the proposition to establish which they were proved. And it was due to the court that his attention should have been called to the distinctions, if any, which made it peculiarly proper to submit the question whether or not an estoppel was proved to the jury. To establish an estoppel in pais, it must be shown: 1st. That the person sought to be estopped, has made an admission or done an act, with the intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, inconsistent with the evidence he proposed to give, or the title he proposes to set up. 2d. That the other party has acted upon, or been influenced by such act or declaration. 3d. That the party will be prejudiced by allowing the truth of the admission to be disproved. ( Plumb v. Cattaraugus County Mutual Insurance Company, 18 N.Y. 392.) In the absence of proof of the effect of the admission on the party setting up the estoppel, it is for the jury to say whether on the facts the several essential parts of the estoppel are proved. It is quite probable that had the attention of the court been so called to the reasons why in this case the question should be given to the jury, he would have submitted it to them, as I think it was proper for him to do.
It would seem that the attention of neither court nor counsel was drawn on the trial to the important estoppel that was proved in the case. Which was, the omission by the defendants and their ancestor to assert title to the premises in question, although knowing the premises to belong to them, and that the plaintiffs, or one of them, had purchased them, and was making valuable permanent improvements thereon, in the belief that they, and not the defendants or their father owned them. That this silence — this omission to assert title — constitutes an estoppel, there can be no dispute. ( Wendell v. Van Rensselaer, 1 J.C.R. 344; Town v. Needham, 3 Paige, 545; Storrs v. Barker, 6 J.C.R. 166; Thompson v. Blanchard, 4 N.Y. 303.)
No evidence can be given that can do away with the force of the estoppel, and a new trial will not be granted, when it is seen that the facts cannot be changed, and the fact proved, is conclusive of the case.
Unless some error can be found, other than the omission to submit the question of estoppel to the jury, the judgment should be affirmed.
If the defendants were estopped, then the plaintiffs were entitled to damages as owners of the premises.
The appellants' counsel moved for a non-suit on five grounds.
1. That no cause of action had been proved against James K. Bowen, and he should be discharged.
2. A joint action for the matters sued for cannot be sustained, even though separate actions might be brought.
3. The deeds under which the plaintiffs claim are void, because Luther Bowen or the defendants were in the adverse possession.
4. There is no evidence that the plaintiffs' deeds cover the premises in question.
5. The plaintiffs gave permission to building the dam, and cannot, therefore, maintain trespass or trover.
The motion was overruled, and the defendant's counsel excepted.
But two of these grounds are relied on by the appellants in this court. Those are the 2d and 5th, and these alone require attention.
1. Edward Brown is the person who made the purchase of the premises some time prior to 1847, and went on and improved them by erecting buildings thereon. In 1847, he sold half to the other plaintiff, and from that time they had been in partnership. In 1850, the wing dam in question was built. It was by means of that erection the plaintiffs were damnified. It is a mistake, therefore, to say that the plaintiffs did not jointly sustain injury. There was no separate injury.
2. That the dam was built with the consent of the plaintiffs.
It is true the dam was built with the assent of the plaintiffs, and it is quite probable one of them may have aided in the work. But it is to be borne in mind that the defendants needed no consent from the plaintiffs to authorize them to build a dam on their own side of the river on their own land, provided that such dam caused no damage to the plaintiffs' property. If a temporary suspension of the mills was necessary in order to enable the defendants to perform the work, the plaintiffs' consent would be needed. If the defendants proposed to so build the dam as to set the water back on the plaintiffs' wheels, it is difficult to comprehend why the plaintiffs should not only consent to the erection of the dam, but aid in the work, without consideration or even a motive for so doing. The probability is, and the jury have found the fact to be, that the consent and aid of the plaintiffs were given on the condition that the work should be so done as not to injure the plaintiffs. There would not seem to be any difficulty in so doing it, had the defendants been disposed to so do the work. By clearing out the new channel into which the water was thereafter to flow, back water could have been as effectually prevented as by continuing it in the old channel. The work of clearing the new channel was only partially carried out, and the result was as might have been anticipated it would be; the current was impeded, the water did not flow off, and, as a consequence, set back on the plaintiffs' wheels. It is quite obvious, also, that the mischief would be constantly aggravated. The earth and stone brought down by the current would have a tendency to deposit itself as soon as the force of the current was lessened, and thus in a short time the bed of the stream filled, and the injury from back water permanently increased. The condition on which the consent was given not being performed, the consent or license was no longer binding on the plaintiffs, and the dam from that time became a nuisance, and the defendants liable for the injury it caused the plaintiffs.
It is said that the remedy of the plaintiffs is an action for breach of the agreement by the plaintiffs to so build the dam as not to injure the plaintiffs. Technically there was no such agreement; although, doubtless, the law might imply one if it was necessary to prevent injustice, but the parties did not understand that the rights of either party rested in agreement. The acts and assent of the plaintiffs might be considered a parol license on condition, which condition has never been performed, and hence the license fails. But the facts proved do not even make a case of parol license. A licence is a bare authority to do a certain act, or series of acts, upon another's lands without possessing any interest therein. (Angell on Water-Courses, § 285.)
The consent, then, of the plaintiffs, and rendering aid in the work, can only operate against them by way of estoppel; and it can not thus operate, because of the express condition on which such aid and assent were given. It seems to me, therefore, that the non-suit was properly refused.
If the foregoing views are correct, they dispose of all the questions presented by the appellant's counsel.
My conclusions then are:
1. That on the evidence the plaintiffs are owners of the mills in question.
2. That by the wrongful acts of one of the defendants, injury has been done to said plaintiffs.
3. That if, on the evidence, ownership by the defendants is proved, yet the plaintiffs are entitled to recover on their presumed lawful possession of the mills, even if such possession is to be presumed to be as tenants of the defendants.
4. But the defendants are estopped from disputing the ownership of the plaintiffs, by reason of their omission to assert title to the lands, knowing that the plaintiffs were acquiring title to them and making expensive improvements thereon, as owners, in ignorance of any claim thereto by the defendants.
5. That the foregoing ground of estoppel is so clearly established, and so conclusive on the defendants, that it would be useless to send the case back for a new trial.
6. But if the judges are of opinion that the case must rest here on the ground of estoppel taken in the court below, and that the others not being suggested, these cannot be considered here, then I am of the opinion that although technically it was the duty of the defendant to have requested the court to submit the question of estoppel to the jury, yet the evidence is so slight on the question that I would be in favor of ordering a new trial on that ground alone.
7. Not discovering any answer to the other ground of estoppel, I am in favor of affirming the judgment, with costs.
All the judges concurring, judgment affirmed.