Dewey v. Bellows

The only question necessary to be settled in this case is, whether the defendant had a legal right to remove the flume erected by the plaintiff, and which passed over the land conveyed with the grist mill and saw mill.

Whether the plaintiff, upon the decay of the dam and flume, might have notified the defendant to repair, under the statute, and on his neglect might have entered and re*285paired himself, making substantially a similar dam and flume to that before erected, and then have maintained an action for contribution ; or whether he might, instead, have proceeded to make such repairs at his own expense, without notice, are questions which do not require a decision at this time.

Other questions might perhaps be raised, but we are clearly of opinion that the plaintiff could not make an erection of a flume altogether different from the former one, upon the defendant’s land, and preclude him from the use of his property ; nor make one which interfered with the defendant’s privilege, and drew a larger quantity of water.

If the plaintiff’s conveyance gave him the right to enter upon the land embraced in the deed to the defendant, it was to repair or rebuild the flume there existing, and not to erect one of different dimensions ; nor was he authorized to erect one drawing more water, even if such an one might be more advantageous to the plaintiff, and if the defendant for the time being forbore to use the water. Whatever rights the plaintiff may have had, as against the defendant, they were not of this character; and the defendant was justified in removing the flume for that reason.

Judgment on the verdict.