mode of controlling and regulating the use of the water essentially interrupts the original and natural flow of the water, and interferes materially with the right of other riparian owners to appropriate and use the water, it is, in its nature, adverse, and, if continued for twenty years, affords a conclusive presumption of a grant of such appropriation and use. Where a judgment of ouster is entered, upon a proceeding in the nature of a quo warranto, against a corporation owning a mill privilege, upon which it has erected and maintained a dam, a grantee of the corporation who acquired his title before such judgment was entered, and who has maintained the dam for more than twenty years after the judgment, gains a prescriptive right to maintain the same as against the owner of the land which it flows.2 § 335. In order to support an easement by prescription, the adverse use must have been continuous.3 A person cannot claim an easement in his own land, and the time during which the claimant may have owned or leased the servient tenement cannot be counted in computing the length of enjoyment, nor can any length of user of a ditch or dam entirely on one's own land be connected with a consequential injury resulting therefrom to a neighbor's land and continued for an insufficient period. But the times of enjoyment by an ancestor and his heir, or by a seller and the purchaser, may be counted together in order to make up the quired where the person against whom the right is claimed could not have interrupted or prevented the exercise of the subject of the supposed grant. Webb r. Bird, 13 C. B. N. s. 841; Winship v. Hudspeth, 10 Exch. 5; Chasemore . Richards, 7 H. L. Cas. 349; Union Mill Co. v. Ferris, 2 Sawyer, 176; Nelson v. Butterfield, 21 Maine, 220. 1 Ibid.; Newhall v. Ireson, 8 Cush. 595. The erection of a new and higher dam in place of an old one is not an infringement of another's prescriptive right to use the water, if such use is not thereby prejudiced. Rogers v. Bruce, 17 Pick. 184. 2 Campbell v. Talbot, 123 Mass. 174. 3 Monmouth Canal Co. v. Harford, 1 C. M. & R. 631; Eaton v. Swansea Waterworks Co., 17 Q. B. 267; Ward v. Robins, 15 M. & W. 237; Pollard v. Barnes, 2 Cush. 191; Tyler v. Mather, 9 Gray, 177; Bodfish v. Bodfish, 105 Mass. 317. 4 Mansur v. Blake, 62 Maine, 38; Polly v. McCall, 37 Ala. 20; Roundtree v. Brantley, 37 Ala. 544; Wilder v. Clough, 55 N. H. 359; Reed v. Earnhart, 10 Ired. 516; Haag v. Delorme, 30 Wis. 594; Holland v. Long, 7 Gray, 486; Olney v. Gardiner, 4 M. & W. 496. requisite period,1 and it is sufficient prima facie proof of a prescription for a general easement, as of a right of way for all purposes, to show the actual exercise of the right for more than twenty years for all the purposes for which its exercise was required at different times, although for some of those purposes it was first used in fact within that period.2 An occasional suspension or interruption of the enjoyment will not defeat the right, if it arises from such causes as the dryness of the season,3 or a temporary failure to exercise the right to the extent claimed, or fluctuations in the flow of the stream. So an entry by stealth, or for purposes other than those connected with the right to enter, will not break the continuity of exclusive possession in another.6 § 336. The diversion of water from a stream by means of a trench is substantially continuous, although subject to interruption during a part of each year by the owner of the land through which the trench is dug. Where a prescriptive right to flow land is claimed, the question is not whether the claimant alone and exclusively has caused the land to be flowed, but whether he has flowed it uninterruptedly for a particular purpose; and it is, therefore, no objection to the acquisition of such a right by prescription that the flowing was caused by different dams owned by 1 Sargent v. Ballard, Pick. 251; Leonard v. Leonard, 7 Allen, 277; Hill v. Crosby, 2 Pick. 466; Kent v. Waite, 10 Pick. 138; Melvin v. Whiting, 13 Pick. 184; Williams v. Nelson, 23 Pick. 141; McFarlin v. Essex Co., 10 Cush. 304; Sawyer . Kendall, Id. 244; Okeson v. Patterson, 29 Penn. St. 22; Benson v. Soule, 32 Maine, 39. 2 Dare v. Heathcote, 25 L. J. (N. s.) Ex. 245; Cowling v. Higginson, 4 M. & W. 245; Davies v. Stephens, 7 C. & P. 570. 3 Hall v. Swift, 6 Scott, 167; Tyler r. Wilkinson, 4 Mason, 397; Geranger v. Summers, 2 Ired. 229; Haag v. Delorme, 30 Wis. 591. 4 Wood v. Kelley, 30 Maine, 47. See Bodfish v. Bodfish, 105 Mass. 317; Branch v. Doane, 18 Conn. 233; 17 Conn. 402. If the different parties do not claim under the same title, or one of them within the twenty years occupies by permission of the owner of the servient tenement, the continuity is broken. Winship v. Hudspeth, 10 Exch. 5; Benson v. Soule, 32 Maine, 39; Perrin v. Garfield, 37 Vt. 309. 5 Winnipisseogee Lake Co. v. Young, 40 N. H. 436; Tyler v. Wilkinson, 4 Mason, 397; Perrin v. Garfield, 37 Vt. 310. See Curtis v. Angier, 4 Gray, 547; Plympton v. Converse, 42 Vt. 712; Carr v. Foster, 3 Q. B. 581. 6 Burrows v. Gallup, 32 Conn. 493. 7 Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 241; Cowell v. Thayer, 5 Met. 257. different persons, one of whom exercised the right of flowage for the purpose of floating logs, and another for the purpose of working mills. If a watercourse is first obstructed by a temporary dam erected to aid in the construction of a permanent dam, which is afterwards built, and not as a means of enjoying or appropriating the water for any of the purposes for which the second dam is intended, the maintenance of the temporary dam is not an assertion of a permanent right to raise the water, and the time during which it is maintained is not to be computed as part of the period of prescription for setting back the stream. So if a dam is permitted to be out of repair for an unreasonable time, as for one or more years, during which the land above is not flowed, the prescriptive right of flowage is interrupted and must begin anew.3 § 337. The user to be adverse must be attended by such circumstances of notoriety that the person against whom the right is exercised may have reasonable notice that the right is claimed against him, and be enabled to resist its acquisition before the period of prescription has elapsed.* Thus, the occasional use of flash boards for brief periods, when little or no injury may be done, does not amount to that open and uninterrupted use which is required. Such boards may be used so continuously as to make them a part of the permanent structure, and by such user a right to flow to the height of such boards may be acquired; but their use only during times of low water, though for more than twenty years, does not justify keeping the water to the height of such boards during the whole year. It is a ques 1 Davis v. Brigham, 29 Maine, 391; Co., 52 N. H. 262; Solomon v. VintKent v. Waite, 10 Pick. 138. ners' Co., 4 H. & N. 602; O'Neil v. Blodgett, 53 Vt. 213. 2 Branch v. Doane, 17 Conn. 402, 419; 18 Conn. 233. See Durgin v. Leighton, 10 Mass. 56. 3 Carlisle v. Cooper, 19 N. J. Eq. 256; Metz v. Darney, 25 Penn. St. 519; Barber v. Nye, 65 N. Y. 221; Olney v. Gardiner, 4 M. & W. 500. See Dana v. Valentine, 5 Met. 8. Gilford v. Winnipisseogee Lake 5 Pierce v. Travers, 97 Mass. 306; Marely v. Shults, 29 N. Y. 346; Hall v. Augsbury, 46. N. Y. 622; Carlisle v. Cooper, 21 N. J. Eq. 596. 6 Ibid. 7 Ibid.; Marcly v. Shults, 29 N. Y. 346. tion of fact for the jury whether such user has established the right; and if within twenty years the claimant has been ordered by an upper proprietor to remove the flash boards from his dam, and has acquiesced and admitted that he had no right to use them, the presumption of a grant is defeated.2 The maintenance of a mill-dam is an act of sufficient notoriety to raise a presumption of knowledge on the part of the land-owner;3 but the long-continued use of a drain beneath different houses would not give rise to such presumption, if the course of the drain was not known to any of the owners of the houses. If the water in a millpond gradually subsides in consequence of the decay of the dam, the owner of an adjoining meadow, who has title to the edge of the pond when full, and whose cattle wander from the meadow over the bottom of the pond, does not thereby acquire title by adverse possession to the bed of the pond in the absence of further notice of such a claim to its owner.5 § 338. The enjoyment must also be as of right, and not by license or merely permissive. "If," says Chapman, J.,7 "the use of a way is under a parol consent given by the owner of the servient tenement to use it as if it were legally conveyed, it is a use as of right.8 So an occupation of land under a parol gift from the owner is an occupation as of right. So if under a parol contract by a tenant in common.10 1 Noyes v. Silliman, 24 Conn. 15; Branch v. Doane, 18 Conn. 233; 17 Conn. 402; Pollard v. Barnes, 2 Cush. 191. 2 Sumner v. Tileston, 7 Pick. 198. 3 Perrin v. Garfield, 37 Vt. 311. Carbrey v. Willis, 7 Allen, 368; Hannefin v. Blake, 102 Mass. 297. 5 Eddy v. St. Mars, 53 Vt. 462. 6 Cholmondeley v. Clinton, 2 Jac. & W. 1; Bright v. Walker, 1 C. M. & R. 219; Baker v. Boston, 12 Pick. 184; White v. Chapin, 97 Mass. 101; Kilburn v. Adams, 7 Met. 33; Paine v. Hutchins, 49 Vt. 317; Postlethwaite v. Payne, 8 Ind. 104; Mebane v. Patrick, 1 Jones (N. C.) 23; Hall v. McLeod, 2 Met. (Ky.) 98; Wiseman v. 9 Sumner v. Stevens, 6 Met. 337; Legg v. Horn, 45 Conn. 415. 10 Leonard v. Leonard, 10 Mass. 281. In such cases the law presumes, after the lapse of twenty years, that a legal conveyance was made. But the character of the use or occupation depends upon the language used and the manner of the enjoyment. If the language is such as to create only a license or a lease, the enjoyment is regarded as permissive, and not as of right, and no title is acquired by it." 1 § 339. The presumption of a grant is rebutted if the person prescribing for the easement acknowledges the right of the owner within the twenty years, though he does it under a mistake of his own rights.2 So the asking leave to exercise the right from time to time within the period of prescription breaks the continuity of the enjoyment as of right, inasmuch as each asking of leave is an admission that, at that time, the person so asking had no title; but the right, when fully established by adverse use, is not lost by asking and receiving a license from the original owner, although this may, in case of doubt, be strong evidence that the previous use was not under a claim of right. It is not necessary that there should be an express claim of the right by the person who enjoys it, or an express admission of the right by the owner of the land.5 In Outram v. Maude, the plaintiff was yearly tenant, from 1791 to 1836, of an underground channel for conducting water from the plaintiff's mill through the landlord's land. This demise was determined in 1836, and a demise of a new channel, for pure water only, continued in force until 1867, when it was determined by the 1 Cheever v. Pearson, 16 Pick. 266. 2 Mitchell v. Walker, 2 Ark. (Vt.) 266. 3 Monmouthshire Canal Co. v. Harford, 1 C. M. & R. 614; 5 Tyrwh. 68; Tickle v. Brown, 4 Ad. & El. 369, 382; Beasley r. Clarke, 2 Bing. N. C. 705, 709; Watkins v. Peck, 13 N. H. 360; Pierce. Cloud, 42 Penn. St. 102. Any possession of land which is accompanied by the recognition of a superior title still existing, is not adverse to that title. Griswold v. But ler, 3 Conn. 246. But when a person takes possession under a parol agreement for a purchase, and pays for the land, or purchases it and takes a deed which is defective, the ensuing possession of the purchaser is prima facie under a claim of title in himself, and is, therefore, adverse. South School District v. Blakeslee, 13 Conn. 235. Tracy v. Atherton, 36 Vt. 503; Perrin v. Garfield, 37 Vt. 304. 5 Blake . Everett, 1 Allen, 248; Johnson v. Gorham, 38 Conn. 513; Law v. McDonald, 9 Hun, 23. 617 Ch. D. 391; 29 W. R. 818. |