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Carlisle v. Cooper.

The owner of the easement is not bound to use the water in the same manner, or to apply it to the same mill. He may make alterations or improvements at his pleasure, provided no prejudice thereby arises to the owner of the servient tenement, in the increase of the burden upon his land. Luttrell's case, 4 Rep. 87; Sanders v. Norman, 1 B. & Ald. 258. So it is not necessary that the dam should have been maintained for the whole period upon the same spot, if the extent of flowage is at all times the same. Davis v. Brigham, 29 Maine 391; Stackpole v. Curtis, 32 Maine 383. A change in the mode of use or the purpose for which it is used, or an increase in capacity of the machinery which is propelled by the water, will not affect the right, if the quantity used is not increased, and the change is not to the prejudice of others. Angell on Watercourses, $8 228, 229, 230; Hale v. Oldroyd, 14 M. & W. 789; Baxendale v. McMurray, L. R. 2 Ch. App. 790; Casler v. Shipman, 35 N. Y. 533 ; Whittier v. Cocheco Manufacturing Co., 9 New Hamp. R. 455; Washb. on Easem. 279, § 38; Hulme v. Shreve, 3 Green's Ch. 116.

The rule is clearly stated by Chancellor Green in the Holsman case, thus: “Where an action is brought for overflowing the plaintiff's lands by backwater from the defendant's mill dam, it establishes no title by adverse enjoyment, to prove that the defendant's mill has been in existence over twenty years, or that the dam has been in existence for that period. The question is not how high the dam is, but how high the water has been held, whether it has been held for twenty years so high as to affect the land of the plaintiff as injuriously as it did at the time the action was brought.”

As a general rule, the height of the dam when in good repair and condition, including such parts and appendages as make its efficient height in its ordinary action and operation, fixes the extent of the right to flow, without regard to fluctuations in the flowage which are due to accidental causes, such as a want of the usual repairs, or the variation in the quantity of water in the stream in times of low

('arlisle v. Cooper.

water or drought, or in the pondage of the dam by its being drawn down by use. Washb. on Easem. 105, § 54 ; Cowell v. Thayer, 5 Metc. 253; Jackson v. Harrington, 2 Allen 242; Wood v. Kelly, 30 Maine 47. But an user to be adverse must be under a claim of right, with such circumstances of notoriety as that the person against whom the right is exercised may be made aware of the fact, so as to enable him to resist the acquisition of such right before the period of prescription has elapsed. Cobb v. Davenport, 3 Vroom 369. Occasional use of flash boards for short periods, when little or no injury may be done, as an exception to the general rule not to keep them on, does not amount to the open, uninterrupted, and notorious adverse use necessary to establish a prescriptive right. Pierce v. Travers, 97 Mass. 306. If used for the full period of twenty years, only during times of low water, a prescriptive right will not be acquired thereby to keep the water up to the height of such boards during the whole year. Marcly v. Shults, 29 N. Y. 346. There may be such continuity of use of flash boards as that they in effect are part of the permanent structure, and by such user a right to flow by means of a permanent dam, to the height of such boards may be acquired. Whether the user has been such as to establish the right, is a question of fact for the jury. Noyes v. Silliman, 24 Conn. 15.

In the dam of 1828 there were two gates, each fourteen feet long, and the solid planking between the mud sill and the cap piece occupied four feet at each end. The difference between the superstructure of the dam of 1828, in its effect in flowing the lands of the complainants, and that ordered by the Chancellor in his decree, is quite inconsiderable. But with respect to the condition of the superstructure of the dam, and the mode of its use between 1828 and 1846, and from 1846 to 1853, there is great contrariety in the evidence. The conflict relates to the use of boards to close up the space between the top of the gates and the cap piece, thus making the top of the cap piece the line of the tumble; to

Carlisle v. Cooper.

the washing away of the superstructure of 1828, and its being replaced by a structure of a different construction; to the use of gates of variable widths, and at time of nothing more than boards upon the sill, kept in place by pegs and starts. With this conflict in the evidence the case was submitted to the Chancellor on its merits.

The evidence touching the extent of the prescriptive right to flow the lands of the complainants by means of the permanent structure of the dam and moveable gates, and also to the use of flash boards, is reviewed by the Chancellor. His conclusion is, that there is not sufficient proof of an use of the flash boards in such a definite manner, or at certain fixed times or occasions, as to establish a qualified right to use them, when they operate to raise the water to any extent on the land of the complainants, and that the right to maintain the permanent structure of the dam, and to raise the water upon the complainants' lands by the use of the gates, is such as I have mentioned as the substance of the decree.

It is not proposed to examine the evidence in detail; a portion of it has been referred to by the Chancellor in his opinion. It is sufficient to say that his conclusions on all these points are supported by direct testimony, and are consistent with the collateral facts proved, and in my judgment are sustained by the weight of the evidence in the cause.

Objection was made to that portion of the decree which provided for the raising of the gates in times of freshets and high water. As the prescriptive right to the use or flow of water originates from its accustomed use, the right may be qualified as to times, seasons, and mode of enjoyment, by the character of the use from which the right has originated. Angell on Watercourses, $$ 382, 222, 224; Bolivar Manf. Co. v. Neponset Manf. Co., 16 Pick, 241; Marcly v. Shults, 29 N. Y. 346; Burnham v. Kempton, 44 New Hamp. R. 78. Prescriptions may be upon condition in restraint of the mode in which the prescriptive right is to be enjoyed, or may have annexed to them a duty to be performed for the

Carlisle v. Cooper.

benefit of the person against whom the prescription exists. Kenchon v. Knight, 1 Wils. 253; S. C., 1 W. Bl. 49; Brook v. Willett, 2 H. Black. 224; Gray's Case, 5 Rep. 79; Lovelace v. Reynolds, Cro. Eliz. 546, 563; Colton v. Smith, Cowp. 47; Paddock v. Forrester, 3 Man. & G. 903.

In the lease to Thompson for the year 1829, the defendant inserted a covenant requiring the tenant to hoist the gates in time of high water, if need be, so that no damage should be done. Similar covenants are contained in subsequent leases, and the evidence is, that it was the uniform practice of the tenants in the use of the dam an its appendages, to control the height of the water in the pond in times of high water, by raising the gates and permitting it to flow off. Like the use of flash boards, only in times of low water, this mode of user qualifies the right which the defendant acquired from user, and the portion of the decree which regulates the management of the gates, is necessary to restrain the flowage of the complainants' lands to what it was accustomed to be during the time of prescription.

In Robinson v. Byron, the injunction was to restrain the defendant from using dams, weirs, shuttles, flood gates, or other erections, otherwise than he had done before the 4th of April, 1785, so as to prevent the water flowing to the complainant's mill in such regular quantities as it had ordinarily done before the said 4th of April. 1 Brown's C. C. 588. A decree of a like nature was made by Lord Eldon, in Lane v. Newdigate, 10 Ves. 192.

The decree, by its reference to the cap piece as fixing the extreme height to which the water may be raised by the use of the gates when shut, is probably more specific in its direction than is usual; but it removes all uncertainty in the adjudication of the court as to the extent of the rights of the respective parties. The complaint that the exercise of the defendant's right to the water is thereby made impracticable, is without foundation. That it might be more conveniently exercised if his right was enlarged, is no reason why it should be enlarged by the sacrifice of the rights of the complainants without compensation.

King v. Ruckman.

The objection that the decree fixes the form and construction of the dam perpetually, seems to me to be of greater force. The expression in the decree on which this objection is founded, was probably used through inadvertence. Let the decree be amended by declaring the defendant's rights, as therein in substance declared; and directing the abatement of so much of the present dam as the Chancellor has declared to be unlawful.

The plea of the complainants is based on the allegation that the stone work of the dam was raised by the defendant in 1846. The Chancellor decides that it was not, and he is supported in this by the clear weight of the evidence.

With the exception of the formal modification above mentioned, the decree is affirmed in all respects. Both parties having appealed, and neither party succeeding on the appeal, the affirmance is without costs to either in this court.

The decree was affirmed by the following vote :

For affirmance—BEDLE, CLEMENT, DEPUE, OGDEN, SCUDDER, VAN SYCKEL, WALES, WOODHULL. 8.

For neversal-VAIL.

King, appellant, and RUCKMAN, respondent.

21 599 61 475

21 599 64

1. The general rule is, that in equity time is not of the essence of the contract, unless the parties have expressly so stipulated, or it necessarily follows from the nature and circumstances of the contract.

2. A contract for the sale of land is regarded in equity for most purposes as if it had been specifically executed. The purchaser becomes the equitable owner of the land, and the seller of the purchase money.

3. Not inequitable in this case to decree performance, though payment or offer of payment was not made on the day fixed.

4. Parol evidence of conversations before the execution of a contract, is

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