#### Coalter v. Hunter, &c. Hunter v. Coalter.

February, 1826.

Watercourse — Right of Land Owner to Divert — Adverse Possession.* — No person has a right to divert a water-course on his own land, so as to turn it from the land of his neighbour lower down the streams; and if he claims that right from long enjoyment of It, he must prove that he has had adverse possession for upwards of twenty years.

Same — Diversion by Land Owner — Redress—Equity Jurisdiction. — If the party, who is injured by such •an act, restores the stream to its original channel, Equity has not jurisdiction to grant redress, as it is a proper case for damages at common law. The only ground of equitable jurisdiction is, to prevent a threatened injury.

'Tail-Race. — The law does not give any power to condemn land for a tail-race.

Mills — Establishment—Certainty Necessary.† — What degree of certainty is necessary, in an order for establishing a mill.

The first of these cases was an appeal from the Staunton Chancery Court; and the second, an appeal from the Superior ■Court of Haw 'for Rockingham county. The subjects of the two were so connected, that they were argued- and decided at the same time.

In the case Coalter v. Hunter, the bill was filed by Hunter, Crawford, Samuel Black and James Black, setting forth the following case: That about 26 or 30 years before the filing of the bill, Samuel and James Black having erected a saw-mill on their land, situate on the south fork of Shenandoah river; but finding that the stream which gave it motion was too small to make it useful, obtained leave of James Crawford, (who owned the land immediately *above,) to change the course of a stream called Coles’ run, and bring it into the stream which supplied the mill: that they accordingly obstructed the ancient course of Coles’ run, and caused it to unite with the mill stream: that before Coles’ run was so changed in its course, it passed through the lahds of Frame, Stewart and Cocke; and when it was turned, the said Frame was present, (as the complainants believe,) and gave his consent: that the complainant Hunter purchased a tract of land, adjoining the lands of the' complainants Samuel and James, below on the stream, united as before mentioned, from the heirs of Adair, on which there was a saw-mill, erected after the junction of the two streams; which circumstance was his chief , inducement in making the purchase: that at the time of the purchase, the complainant Hunter knew of no claim of any person to divert the water, though he had lived in the neighbourhood for many years: that he has continued the saw-mill, and intends to build a grist-mill for the manufacture of flour, and has obtained leave of the County Court of Augusta, -though opposed by a certain Thomas S. Coalter, who has purchased, about five years ago, the land formerly belonging to the said Frame; although the said Frame has not only consented to the union of the said streams, but has acquiesced for twenty years thereafter, during which he resided on the land: that notwithstanding, the said Coalter has assumed to himself the right of removing the obstruction, and turning the said stream into its ancient channel. This he does, by entering on the land of the complainant Crawford without any permission, and repeats it as often as the obstruction is replaced, for the purpose, (as the complainants'have heard,) of building a saw-mill; in consequence of which conduct, the sawmill of the complainant Hunter has been stopped for want of water. The complainants therefore pray, that the said Coalter may be perpetually restrained from removing the said obstruction, or in any manner interrupting the water as it has flowed since the union of the streams.

*Coalter answered, admitting that the Blacks owned the saw-mill mentioned in the bill, which has now gone to decay, and is entirely useless: that it is true, that Coles’ run, was turned out of its ancient channel some twenty odd years ago, after the complainants Samuel and James had built their mill aforesaid, for the purpose of rendering it more useful to the proprietors; but he does not admit that it was so turned, with the consent of all persons concernedthat he is informed, that the ■ said Cocke and those who claimed under him, and the said Stewart never did give any consent: that the permission given by Frame, and Crawlord the ancestor of the complainant, was merely a temporary indulgence to the Blacks, who paid no consideration therefor, and who agreed to use the said water, merely at the will of the said Frame and Crawford: that their acquiescence is only to be referred to the use thus granted: that the respondent.purchased the land he now holds, upon the information that the said Blacks had no title to the said water, but held it only as tenants at will: that in order to turn the said water into its ancient channel, nothing more is necessary than to remove a dam erected across it, made for the purpose of forcing the water into the new channel; and that dam has now been removed for about three months: that it was in this situation, when the bill was filed in this cause, &c.

An injunction was awarded upon filing the bill. Many depositions' were taken, the purport of which was, that the use of the water of Coles’ tun, was originally *37applied for, and granted, as alone, without consideration; and its enjoyment after-wards, was never claimed as a right: that this alone continued for upwards of twenty years, when Coalter, who had acquired the land below the point at which the water had been diverted, removed the obstruction, and restored the water to its former channel.

The Chancellor perpetuated the injunction, and Coalter appealed to this Court.

*The case of Hunter v. Coalter, was an application made by Hunter to the County Court of Augusta, to establish a mill and dam, for which leave was granted by the said Court. An appeal was taken to the Superior Court of Augusta county, and afterwards removed to the Superior Court of Rockingham.

The writ of ad quod damnum recites, that “whereas Andrew Hunter is desirous of building a water grist-mill and dam, and other water works on Black’s saw-mill branch in this county, he owning the lands on both sides of the said branch,” &c. The inquisition of the jury states that “no dam will be necessary to take the water out of said creek: that the seat of said mill, &c. will be on said Hunter’s land: that the greater part of the head race will also be on his land; but that the upper part thereof, for about seventeen poles *from*where the water will be taken out of the creek, will be on the land of Samuel Black, for which said Black has agreed to receive from said Hunter the sum of twenty dollars already paid, as appears from said Black’s receipt, &c. This sum we consider a sufficient compensation for the damages, &c. We find that no grounds will be overflowed above the mill or head race. We find that there is a tail-race at present now used as such, and which has been so used for about ten or eleven years, and previous to Dr. Thomas S. Coalter’s purchase of the land adjoining said Hunter, about seven years. The said tail-race returns the water into the creek from which it is taken. It passes through the land of said Hunter, for about twelve poles from the seat of the mill; after which it leaves said Hunter’s, and passes through the said adjoining land of said Thomas S. Coalter, for about eleven poles, into the said creek. The said Hunter proposes to use said tail race, if permitted by the Court. In that case, we find that damage to said Coalter will be twenty-seven dollars, if the said tail race is' kept sufficiently open, that water from the wheel will not overflow any ground out of the banks thereof. In case the said tail should not be established by the *'Court, said Hunter proposes to cut a new tail race from the mill to his line, which will pass through the lands of said Hunter about twenty-five poles. If said Hunter is permitted by the Court to continue such new tail race, through said adjoining land of saJd Coalter, into said creek, it will pass through the land of said Coalter about 32 poles, commencing &c. We find that the damage to said Coalter will be $230. But if said Hunter should not be permitted to continue said tail race, as last mentioned, then the water from where his tail race last mentioned would stop at his line, would overflow part of the said adjoining land of said Coalter, and passing near the line between said Hunter and Coaltcr, would cover some low and some marshy ground belonging to said Coalter, and finally pass into the South river. In, that case, the damage to said Coalter would be $1000. We find that the water could not return into said creek, or pass into any other stream, except in the modes above mentioned; unless some other tail race should be cut, from which also, the water would have to pass through said Coalter’s land; and we know of no other route, by which the water could be made to pass through said Coalter’s laud, by which he would receive less damage, than by the routes above mentioned. We further find, that in any of the plans before mentioned, no ground will be overflowed above or below the seat of said mill, and except as before mentioned, and that no mansion house, office, curtilage, garden or orchard, will be overflowed: that navigation or fish passage will not be obstructed; and that the health of the neighbours will not be annoyed, except in the last case, which we think the health of the neighbours may be annoyed.”

The County Court decided, “that the said Andrew Hunter have leave to build his grist-mill and dam, and other water works, prayed for agreeably to the inquisition of the jury, heretofore returned.”

The defendant Coalter appealed to the Superior Court of Haw. That Court reversed the decision of the County “Court, and denied the application of Hunter for leave to erect the mill, &c.

Hrom that decision, Hunter appealed to this Court.

Heigh and Johnson, for Coaltor, in both cases.

Attorney General, for Hunter, in both cases.

A great part of the argument turned upon the evidence; and it was contended by the counsel for the appellant in the first case, that the permission originally given to turn the water of Coles’ run, was without consideration, and might be revoked at any time; and that the subsequent enjoyment of that privilege, must be referred to the original grant, and could not be considered adversary. Upon this state of facts, they argued that Hunter, and those under whom he claimed, could not acquire a right to the use of the water, by any length of possession. They contended, that the case of Bealy v. Shaw and others, (on which the Chancellor relied,) did not support the position contended for on the other side; but on the other hand, confirms the doctrine, that the possession must be adverse, to give a title to the enjoyment of a water right. This position is proved by Eldridge v. Knight, Cowp. 214. The Mayor of Hull v. Horner, Cowp. 108. Halcroft v. Heale, 1 Bos. & Pull. 400. Campbell v. Wilson, 3 East. 294. 2 Wms. Saunders, 175, note 2.

As to the case of Hunter v. Coalter, Hunter had no right to make the water pass through Coalter’s land, and no jury can, under our law, grant such permission. *38The Act of Assembly only gives permission to condemn land for an abutment. Besides, the inquisition is irregular, in finding several damages in three several aspects of the case. It ought to have been quashed.

The counsel for Hunter contended, in the case of Coalter v. Hunter, that the latter had the enjoyment of the use of the water in question, for more than 20 years; and *that a jury might presume an adverse possession. The case of Bealy v. Shaw, fully supported the Chancellor’s opinion. The pretended loan was indefinite, and amounted to a gift. It was sustained by a sufficient consideration, in the labor and expense which Hunter was induced to bestow, in the erection of various water works, and which would become utterly useless, if the permission were withdrawn. He referred to 1 Phill. Evidence, 128, to shew that a possession of twenty years will be presumed to be adverse. Denn v. Barnard, Cowp. 595, and Elmendorf v. Taylor, 10 Wheat. 153, establish this position. Hunter was a purchaser without any notice of this latent claim of Coalter; in which case he would take the property discharged from it. Sugd. 6. Ib. 512. Newman v. Chapman, 2 Rand. 93. Coalter was prohibited by the law against pretented titles, from buying this contested right.

As to the case of Hunter v. Coalter, it is true that the Act of Assembly does not give a right to condemn land, for a tail race, in express terms; but it is embraced in the enquiry which the jury are required to make, whether the land will be overflowed, &c. Whenever a grant is made, every thing passes under it which is nec'esary to its enjoyment. 1 Saund. 323, n. 6. Hawton v. Frearson, 8 Term. Rep. 50.

*

 Watercourse— Right to Divert — Prescription.—It is establishes by many authorities that one man can by prescription gain a right of way over another man’s land: that one man can by prescription gain a right to back water or flow water over another man’s land by means of a mill dam or the like. Many incorporeal rights or easements can be established by prescription. Eells v. Chesapeake, etc., Ry. Co., 49 W. Va. 65, 38 S. E. Rep. 480, citing principal case to the point.

The principal case, is also cited in Stokes v. Upper Appomatox Co., 3 Leigh 334; Nichols v. Aylor, 7 Leigh 558; Moore *v.*Steelman, 80 Va. 340; Cornett v. Rhudy, 80 Va. 714; Boyd v. Woolwine, 40 W. Va. 289, 21 S. E. Rep. 1022.

†

Mills — Establishment.—See monographic *note*on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.

Pebruary 1.

JUDGE CABELL

delivered the opinion of the Court.

In the first of these cases, Hunter claims the right to the diversion and use of the water of Coles’ run, and founds his claim on more than twenty years possession by himself, and those under whom he claims.

It is abundantly proved by the evidence in the cause, that the use of the water in Coles’ run was originally applied for as a loan; that it was granted without consideration, as a loan; and that its subsequent’ enjoyment was *never claimed, otherwise than as a loan; and the bill puts it on this ground. Tne loan continued for more than twenty years, when Coalter, who had become thé owner of the land below the point at which the water of the run had been diverted, wanting the water for his own purposes, removed the obstruction which' caused the diversion, and restored the water to its ancient channel. Hunter filed his bill to injoin this proceeding, and the Chancellor granted, and after-wards perpetuated the injunction.

The Chancellor founds his opinion on a dictum of Eord Bllenborough, in the case of Bealy v. Shaw, 6 East. 208, that “twenty years exclusive enjoyment of water, in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or Act of Parliament.” This doctrine of Eord Ellfnborough, understood as he intended to apply it, is perfectly correct; but the language which he uses, even in that case, and in the sentences immediately preceding, will shew that he never thought of applying it to a case like this. He says, “the general rule of law, as applied to this subject, is, that independent of any particular enjoyment used to be had by another, every man has a right to have the advantage of a flow of water in his own lands, without diminution or alteration. But, an adverse right may exist, founded on the occupation of another; and though the stream be either diminished in quantity, or even corrupted in quality, as by the means of the exercise of certain trades; yet, if the occupation of the party so taking or using it, have existed, for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream subject to such adverse right;” and then follows the remark on which the Chancellor relies. It is clear, then, that he meant an enjoyment adverse to the right of the other party. He meant an enjoyment that excludes the idea of its being founded and continued in the loan, leave or favor of the other party. It is of the very nature of presumptive proof, *that it yields to that which is positive. When a loan is positively proved, now can we presume a grant?

The law on subjects of this kind is well laid down in Campbell v. Wilcox, 3 East. 294. That was a right of way. The party who had been obstructed in the use, had been in possession of it for more than twenty years. The Judge at Nisi Prius instructed the jury, “that if they were satisfied that the enjoyment of the way was adverse, and that it had continued upwards of twenty years, it was sufficient ground for presuming a grant; that the use of a road, as matter of right, by those who claimed it, and submitted to as matter of right, by the possessor of the land through which it passed, was to be considered as an adverse enjoyment; but. that if the enjoyment had been by leave or favor, or otherwise than under a claim of right, it would repel the presumption of a grant.” This instruction was concurred in by the whole Court of King’s Bench. If authority were desired, in a case so strongly supported,by reason, it would be difficult to imagine authority more apposite.

Upon the merits, therefore, the decree of the Chancellor should be reversed, and the bill dismissed. ,

But, if the merits were otherwise, the bill should be dismissed for want of jurisdiction.

If Hunter had been in the actual enjoyment of the use of the water, and had reasonable ground to apprehend that Coalter intended to deprive him of that enjoyment, an application to the Chancellor to prevent this threatened injury, might have been proper. But, Coalter had actuallv removed the obstructions in the bed of Cules’ run, and had restored the water to its ancient channel, before the application made to the Chancellor. There was, then, no ground for his going into equity. A Court of Baw was open to him, *39and was the proper forum for trying the right to the use of the water, and for giving damages for any obstruction of its enjoyment. On this ground, also, the decree should be reversed, and the bill dismissed with costs.

*As to the case of Hunter v. Coalter, it is clearly not a case for a mill under the Act of Assembly. The law gives the Court no power to condemn lands for a tail-race; and this point is sufficient to put an end to the case, without deciding the other questions made in the argument.

But, if this were a proper case for a mill, the order giving leave to establish it was rightly reversed for its uncertainty. The jury suggested three plans, in each of which the damages were different, and in one of which the health of the neighbourhood would be injured. The County Court established the mill generally, without confining the applicant to either plan.

The judgment of the Superior Court is, therefore, correct, so far as it reverses that of the County Court, and gives the costs in the said County Court; but is incorrect in not having dismissed the petition. It is, therefore, reversed; and this Court proceeding, &c. dismisses the petition. But, the appellee, being the party substantially prevailing, is to recover all costs.