Opinion
February 20, 1892.
That for many years mills have been maintained in connection with a dam furnishes no presumption that the dam was built under the mill act.
BILL IN EQUITY to compel the respondent to remove a dam maintained by it at Pawtuxet.
James Tillinghast Theodore F. Tillinghast, for complainants.
Nicholas Van Slyck Cyrus M. Van Slyck, City Solicitors; for respondent.
The complainants base their claim for relief upon the assumption that the dam in question was erected under the provisions of the mill act; and consequently, as the water is not now used for mill purposes, they are entitled to have the river restored to its natural flow. The court is of opinion that it is not warranted to make such a presumption. The only evidence to support it is the fact that for many years mills have been maintained in connection with the dam. But the dam may have been legally built, and the water flowed back otherwise than under the mill act; as by the owners of the surrounding land, or by release from or satisfaction to such owners. If it was done under the mill act it was a matter of record, which, so far as appears, could have been shown and should have been shown by the complainants. This fact not being established, it is not necessary to decide the question whether the non-user of a mill-pond is sufficient to compel the opening of the dam. In Massachusetts it has been held that it is not. Daniels v. Citizens' Savings Institution, 127 Mass. 534, 536. Williams v. Nelson, 23 Pick. 141.
The evidence shows that this dam has been maintained for more than forty years. The point is taken that the answer does not set up a prescriptive right. The answer does not plead prescription in technical terms, but it sets up the fact, on which this defence is based, and the parties have submitted this fact as an issue to be passed upon by the court. The court is of opinion that the question is sufficiently raised. The maintenance of the dam for so long a time raises the presumption of a grant, which entitles the owner to maintain a dam independently of the question of non-user for mill purposes. Ray v. Fletcher, 12 Cush. 200; Angell on Watercourses, § 504.
If the complainants are entitled to redress for injury sustained outside of the prescription right, it should be sought and established at law. Sprague Another v. Rhodes Others, 6 R.I. 56.