Fessenden v. Morrison

It may well be conceded for the purposes of this case, that a right to raise water to a certain height by means of a dam, involves the right to do such other acts, at other parts of the stream, as are necessary to render the right of maintaining the dam of any value, and that if by the natural and ordinary work of the elements a channel *231becomes excavated, or begins to be excavated, upon the land of the riparian proprietor, that must divert the water from the uses for which it has been detained in the pond or reservoir, the party raising the dam and entitled to the use of the water, may stop up the new channel. And this concession may be made irrespective of the origin of the right to maintain the dam, and of the question whether the boundary of the riparian owner is to be found upon the margin of the reservoir or at the thread of the stream.

But the plaintiff does not so limit his claim. Upon the hypothesis that he has, by his own illegal act, in raising his dam a foot and a half beyond the level to which he was entitled, broken away the banks of the defendant, and thrown the water upon his farm, he claims to make a further appropriation of the land so flooded, by erecting upon or around it a breakwater or embankment, to prevent the escape of the water so unlawfully raised by himself. This is a clear enlargement of his dominion, and an encroachment upon the soil of the defendants. If the act has become necessary for the preservation of his water privilege, it has been rendered so by his own wrong; and it will be in season to justify it, upon the ground of such necessity, after he shall have cut down his dam to the proper level.

The evidence was such as to justify the defendants’ motion. It tended to show that the erection, in 1833, was a foot and a half higher than the plaintiff’s proper level, that since that time the defendants’ bank had been worn away a rod and more at the place where the breach occurred and the embankment was made. It was proper, in that state of the evidence, to leave it to the jury to inquire whether the wearing of the bank was caused by such erection. If the affirmative were true, the pond had of course become enlarged by the illegal act of the plaintiff, and he had, of course, no right to go to the edge of it so extended over the defendants’ soil, and to erect there the embankment, to pre*232vent the escape of the water in that direction, and the jury should have been so instructed, according to the defendants’ motion. The verdict, for that cause, must be set aside and

A new trial granted.