1826.

February.

Coalter

υ.

ately 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 Hunter, &c. Coles' run was so changed in its course, it passed through the lands 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 chase, the complainant Hunter knew of no claim 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 re-placed, for the purpose, (as the complainants have heard,) of building a saw-mill; in consequence of which conduct, the saw-mill 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.

1826. February.

Coalter

V.

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, Hunter, &c. was turned out of its ancient channel some twenty odd years ago, after the complainants Samuel and Jumes 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 concerned: that 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 Crawford 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' run, was originally applied for, and granted, as a loan, without consideration; and its enjoyment afterwards, was never claimed as a right: that this loan 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 1826. by Hunter to the County Court of Augusta, to establish a February. mill and dam, for which leave was granted by the said Court. Coalter An appeal was taken to the Superior Court of Augusta Hunter, &c. 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, abou: seven years. The said tailrace 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

υ.

V.

1826. Court, said Hunter proposes to cut a new tail race from February, the mill to his line, which will pass through the lands of Coalter said Hunter about twenty-five poles. If said Hunter is Hunter, &c. permitted by the Court to continue such new tail race, through said adjoining land of said 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 Coalter, 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 land, 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 Law. That Court reversed the decision of the County

Court, and denied the application of Hunter for leave to 1826. erect the mill, &c.

From that decision, Hunter appealed to this Court.

February.

Coalter

v.

Hunter, &c.

Leigh and Johnson, for Coalter, 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. The 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 It ought to have been quashed.

case.

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