#### Manier *vs*Myers and Johns.

Error to the Montgomery Circuit.

Case.

*Case*30.

For the facts of the case see 4 *B. Momos,*514.

Additional proof on its return to the Circuit court and its tendency.

Instruclions of the ciicuit Ct.

*Adverse enjoyments. Non user of*privilege.

*Oct*6.

bjUGE Marshall

delivered the opinion of the Court.

This case was formerly before the Court, on a writ of error prosecuted by Manier, and to *the*opinion *then*rendered, and to be found in 4 *B. Monroe.*514, we refer for a general statement of the case, and of the facls and principles involved.

On ihe return of the cause to the Circuit Court, a second trial was had, in which much testimony was adduced on both sides. That on the side of the plaintiffs, Myers and Johns, tended to prove that their mill is more, obstructed by back water since tire erection of Manier’s new dam in 1842, and in consequence of it, as some witnesses say, than it had been by the back water from the old dam within twenty y^flkbefore the erection of the new one ; while that on l^pfe of Manier tended to prove that the new dam was not as high as *the*old one, and did not in fact elevate the water so much as the old one had done within twenty years preceding, and tended also to prove that since the erection of the new dam, there had been other causes, to which the greater and more frequent obstruction of the plaintiff’s mill might be attributed. The Court thereupon, and without the motion of either party, so far as appears, instructed the jury, that *133first, “if the plaintiffs’ mill wheels were not as much obstructed within twenty years next preceding the erection of Manier’s dam, as they have been since, and said obstruction is produced by the erection of Manier’s dam, then the law is for the plaintiffs. 2d. But if the plaintiffs wheels have been as much flooded by any of the previous dams of the persons under whom Manier holds, within twenty years before Manier erected his dam, then the law is for the defendant.” And the defendant having excepted to the first instruction, and also to the opinion of the Court, overruling his motion for a new trial, made on the ground that the Court had misdirected the jury, and that the verdict was against the law and evidence, the only question before this Court is, whether on either of these grounds a new trial should have been granted.

It is not'our province to determine the weight of the evidence, with the view of testing the verdict absolutely by our opinion upon that point, nor should we in general, deem it necessary, even when we regard the verdict as being against the evidence, to enlarge upon that point, or to attempt a demonstration of it. unless it be the only point upon which a judgment of reversal might be based. In this case we shall only remark, upon the testimony, as above referred to, that considering the nature of the question involved, and of the opposing rights asserted by the parties respectively, and looking to the principles expressly settled by the former opinion, the direct testimony of credible witnesses with regard to the comparative height of the old and new dam, and the height to which the one or the other within twenty years prior to the erection of the new dam, would elevate, or had in fact elevated the water, is entitled tffltonuch more weight than any ■evidence of the fact that tWupper mills have been more flooded since the erection of the new dam than before, or even of the fact that the water appears to be backed up nearer to the upper mill, or more upon its wheels than formerly. The testimony derived from observations made at the plaintiff’s mill, may be all-sufficient to prove the greater obstruction to his wheels, and the greater elevation of the water immediately below his mill, since than before the erection of the new dam. But as both of these *134effects might be produced by other causes than the greator elevation of the water by the new dam, the inference drawn from these effects, if at ail sufficient to prove the fact of the greater elevation of the water by the new dam, is entirely destroyed by proof that the old dam had within twenty years elevated the water to a height as great or greater than that to which it is elevated by the new one.

The existence and continuance of the right to the privilege of the owner of a mill to dam up the water to a particular distance, does not depend upon the fact that the water within twenty years has or not been backed up to that distance, hut that it *may have*been so hacked if there had been a sufficiency of water.

In the former opinion, the right of the defendant to elevate the water by his new dam to as great a height, not exceeding the original privilege, as it had been elevated to by the old dam at any time within twenty years, and his consequent freedom from liability to this action, unless by the erection of the new dam he has elevated the water to a greater height, and thereby obstructed the plaintiffs in the enjoyment of their mill, and in the use and flow of the water from its wheels, as they and their predecessors had been accustomed to have it for twenty years, are expressly recognized and distinctly stated.

We now add, on the suggestion of the defendant, what though not directly necessary to the determination of this case, is illustrative of the principles involved in the subject, and is a proper qualification and consequence of those principles, as heretofore stated, *that as the main*tainance of the defendant’s privilege must depend upon his own acts or negligence, and not upon accidental or providential causes, if it could be supposed that during twenty years, there had not been water enough in the stream to fill his dam, yet to whatever height within his legal privilege, it was capable at any time within that period of holding and raising the water to the same height, would_he be entitled afterwards to keep it up, although in consequence of aJ^ater supply of water, his dam might in fact raise it bigner, and occasion greater obstruction to the mill next above on the stream, than it had done within the preceding twenty years. And in such case, the proprieter of the upper dam would have acquired no right by his twenty years enjoyment, to require the defendant to diminish the capacity of his dam, and would have no right of action for the subsequent interruption of his enjoyment by a rise in the water to the height to which the defendant’s dam would have elevated it at *135any time within the twenty years, if there had been water enough to fill it according to its capacity, and yet here would be a case in which the upper mill might be more obstructed than it had been for twenty years; and as the obstruction would certainly not be so great if the lower dam had not been there, it might be said to be produced to some extent at least, by that dam.

But in this case there was no such defect of water, as to prevent the old dam from being often filled according to its capacity. And as it is certain that the new dam can not raise the water higher than its own level, the question whether the defendant has exceeded his right in the erection of the new dam, would seem to be at once, and easily and certainly determinable, by comparing the height or level of the naw dam, with the height or level of the old one, in the best condition in which it had existed at any time within the preceding twenty years. And this would be a conclusive test, unless it appeared that the old dam had not at any time within the twenty years been in such a condition, as by its own capacity of resistance and of holding water to elevate it to its own level, which certainly could not be assumed to have been the case since the old dam had been repaired within the twenty years. Another test which, though perhaps more difficult to establish, maybe more satisfactory, since it comes nearer to the very fact to be ascertained, consists in a comparison of the point upon some fixed object to which the new dam elevates the water, with the point upon the same object to which it had been raised by the former dam at any time within twenty years, or in the comparison of the water line of the pond, when the water is on a level with the top of the new dam with the highest water line within the preceding twenty years, when the water was level with the top of the old dam. There may be other tests, and in the application of any or all of them, those who are experienced in the subject will know how to discriminate between the elevation of the water by the power and capacity of the dam, and its elevation by those floods which carry the stream above all obstructions. The actual height to which the new dam

*136Thexight to xaise a new dam, ■where it is necessary* is to raise it to the height to which it had been for the preceding 20 years.

To establish a tight claimed by *•non user,*it is incumbent on the party asserting it to show that some right was invaded, and that there had been *an adverse enjoyment*for 20 years.

elevated the water at any distance up the stream might be ascertained *if*necessary, by the level.

If the new dam does not by its own capacity of holding and raising the water, elevate the stream to a greater height than had been done by the old dam within twenty years before the erection of the new one, the defendant did not exceed his right, nor invade any right of the plaintiffs, founded upon non user of privilege by him, and enjoyment of a consequent advantage by them, and he is not liable to this action, no matter what may have been the comparative condition and operation of the plaintiffs mills, or what may have been the comparative height of the water at or immediately below it, before and since the erection of the new darn. Assuming what seems to be entirely certain, that the new dam does not exceed the original privilege under which it was erected, it is manifest that the plaintiffs claim a right founded on a non user of twenty years, of some portion of the privilege, and upon the enjoyment by' themselves of a consequent advantage for the same period. This is *the*foundation of their action. For if they have not the right asserted, there can be no injury to it of which they can complain.

The injury complained of is, that the defendant has, in the erection of the new dam, resumed or attempted to resume some portion of the privilege which had been lost by his *non user,*and by the adverse enjoyment of the plaintiffs, and that he has thereby invaded to their damage, the right which they had thus acquired. It is incumbent on the plaintiffs in making out their cause of action, ,to establish the right, the injury to that right by some invasion of it, and a consequent damage, which may however be implied. And the defendant may rely, in his defence, either upon the non existence or the non invasion of the right asserted. The most favorable assumption for the plaintiffs, is that their enjoyment, and consequent right, are coterminous with the privilege of the defendant — that both are limited by the extent of the non user of the defendant’s privilege for twenty years or more, and that the resumption of any portion of that privilege, after such non user, was therefore an invasion of their right, injurious and detrimental to them, and for *137which this action may be maintained. If this be so, then in showing that the defendant had resumed any portion of the privilege which had not been used for twenty years, it would also be shown that he had invaded the right of the plaintiffs, and the cause of action would be made out. But the right of the plaintiffs may not be commensurate with their enjoyment for twenty years, nor coterminous with the privilege of the defendant. But whether this be so or not, it is manifest that in every aspect of the subject, and whether we look to the case which the plaintiffs must make out, in order to sustain their action, or to the defence which may be, and in this case is, relied on to defeat it, the primary and fundamental questions are, to what extent was there a non user of the defendant’s original privilege for twenty years before the erection of the new dam? And was there in the erection of that dam, a resumption or attempted resumption to any extent, of the privilege which had not been used for twenty years? As the privilege referred to is the privilege of raising the wafer by a dam for the use of the defendant’s mill, these two questions resolve themselves into the single one whether the new dam raises the water higher than the old darn had done at any time within twenty years before the ■erection of the new one? If the right of the plaintiffs, and the privilege of the defendant, as it existed when he erected the new dam, were coterminous, a determination -of the question either way, determines the action. If the right of the plaintiffs did not meet the privilege of the defendant as it existed at the time referred to, that is, if the defendant might have then raised his dam so as to elevate the water higher than it had been elevated by the previous dams, at any time within twenty years, without invading any right or enjoyment of the plaintiffs, then although a negative determination of the question would •at once defeat the action, an affirmative determination of it would still leave the enquiry whether the defendant had so far exceeded his privilege as to invade the right of the plaintiffs and thus to injure them. But still, the ques. tion as before stated, is the primary and fundamental one;- and the enquiry just referred to is in 'its nature secondary ■and consequential; and so in any state of the evidence, *138is the enquiry into the condition of things at the upper mill, since the erection of the new dam. For that is immaterial, unless the new dam exceeds the privilege of the defendant, by elevating the water higher than had been done within twenty years preceding, by the old one.

The fact that a new dam elevates the water more than an old one, is not conclusive that the builder has exceeded his privilege.

It is not denied to be a proper and material part of the plaintiffs’ case, to show that their mill is more obstructed since, than it had been for twenty years before the new dam was built, and that the water from below flows back upon their mill more frequently and to a greater height than before. Nor need we deny, that in the absence of all other evidence, and from the absence of all evidence on the part of the defendant, a jury might possibly infer that these effects had been caused by the fact that the new dam elevated the water to a greater height than the old one had done within twenty years, and thus be authorized to find a verdict for the plaintiffs. The argument would be, a new dam has lately been erected by the defendant; since its erection the plaintiffs’ mill has been more obstructed by water from below' than it had been for twenty years before; this may have been caused by the fact that the new dam elevates the water to a greater height than the old one had done for twenty years before ; no other cause is shown to have existed, therefore this is the cause, and therefore the new dam raises the water higher than the old one had done within twenty years.

If the effect, could be produced by no other cause but the one thus inferred, the argument, would be conclusive to prove the existance of that cause. But it is weakened by the fact that there may be other causes adequate to produce the effect, and it is rendered utterly inconclusive by proof that such causes did in fact exist. If it were proved or admitted that the new dam did in fact elevate the water more than the old one had done for twenty years, it would still be the subject of enquiry and proof, whether this fact could and did produce the effects com. plained of, or whether they were produced by other causes. But in this case the greater elevation of the water by the new dam is the very matter in question; and not only does the proof conduce to show the existence of other facts competent to produce the effects relied on, without *139
      *the*aid of this fact, but this fact is itself susceptible of direct examination and proof, and direct proof is adduced in relation to it.

The plaintiff f^ury tiThfsmi°í 7at.?r from defendant’s mill, andthatdece"dedhteprM« *140lege, and elevaer'^than^e’hád a iisht to . do— Held that it was error to make whether*0* the greater'V upon plaintiff than it had been for 20 years anterior to the new dam the cessary0illto “be proved by plain-a ree°overy|10and jury“s4ru°4 the

*139The defendant complains that in this state of the evidence, the Court in undertaking to aid the ju.ry in their investigation, gave instructions calculated to withdraw their attention from that which should have been the chief subject of enquiry, viz: whether he had in fact exceeded his right as it existed when he built his new dam, and to direct their enquiries mainly to the condition of things at the mill of the plaintiffs, and especially to the question whether their wheel was more obstructed since than for twenty years before that time; and to make their opinion upon this question, rather than upon the question whether he had, in fact, exceeded his privilege, the basis of their verdict. He objects, that by the instructions given, the event of the cause and the preservation or loss of a valuble privilege are made to depend, not upon the acts or neglect of himself or his predecessors, either in failing to use the privilege or in at any time exceeding it as it then subsisted, not upon facts compacted with their exercise of the privilege, not upon the actual state of their dam and the height to which it elevated the water at any period, but upon conjectural inferences drawn from facts not connected with their dam, and over which they had no control, and of which some may have been caused by difference in the seasons, and some by the acts of the plaintiffs themselves, in elevating or depressing the wheel of their mill, which the defendant not having access to, could not discover or prove; and that even if this was not done, the principle of the instruction which makes the result depend not upon the condition of things at the lower dam, but upon the operation of the upper mill, would allow of its being done with the effect of depriving'lhe lower mill of its privileges, unless its owner could discover and prove the fact.

These considerations are entitled to much weight, and tend, with others which have been stated, to illustrate the importance, in a case like this, of directing the jury to ,r . *, ° . 3 3*the proper subjects of enquiry, and laying before them explicitly, the conditions on which the rights of the par*140t¡es and the law of the case depends. The distractions given have, in our opinion, failed to accomplish this, They do not make the case turn upon the question whether the new dam elevates the water higher than the old one had done within twenty years, but seem to make it turn *J 1*, upon the question whether the’wheels of the plamtiils mill are more obstructed since than they bad been within twenty years before the erection of the new dam. The fijSt instruction does indeed, refer to the fact of the ob' ... , . , ,,T . , , struction being produced by Mamer s dam as necessary to authorize a recovery, but it is far from presenting exP'‘c‘tly> the precise point of enquiry, and in its reference to this part of the subject, is vague and ambiguous; and as the second branch of the instructions which undertakes to state the conditions on which the law would be for the defendant, although in itself true as far as it goes, places the defence and the Immunity of the defendant solely upon the condition that the plaintiffs’ wheel had not been more flooded since the erection of the new dam than it had been within twenty years before, by any of the pre, vious darns under the same privilege, the jury may have understood, and probably did understand that they were bound, under the first instruction, to find for lire plaintiffs, if their mill had been, more obstructed since the erection of the new dam, and at any rate,'if it was also more flooded than it would have been if there had been no darn at Manier’s mill. In either aspect, the defendant’s privilege might be lost by a change in the seasons or other intervenient causes. We cannot, therefore, regard the verdict as finding the facts upon which alone the plaintiffs are entitled to recover; and are of opinion that because the instructions were misleading and erroneous, a new trial should have been granted.

We are not satisfied that upon lire evidence in this record, the Court might not have assumed that the use and enjoyment of the plaintiffs’ mill, as it was used and enjoyed for twenty years before the erection of (he new dam, was under a claim of right, and with the knowledge of the owners of the lower mill, and we should not have been disposed to disturb the verdict merely for the omis. sion to submit these facts to the jury as conditions of a *141finding for the plaintiffs. But on the ground already stated, the judgment is reversed and the cause remanded for a new trial in conformity with this and the former opinion.

*Robinson*§1 *Johnson and Hazlerigg*for plaintiff: *Hanson and Apperson*for defendants.