Charles N. Arnold et al., Appellants, v. The Hudson River Railroad Company, Respondent

Charles N. Arnold et al., Appellants, v. The Hudson River Railroad Company, Respondent. (Argued December 12, 1873; decided December 23, 1873.) This was an action to recover damages for the alleged obstruction of a water-course. One David Arnold owned a nail factory, also the right to take a certain quantity of water from a creek and to convey it over or under the surface of the intervening lands to said factory to propel its machinery. For this purpose he built a trunk about six feet above the surface, through which the water was conveyed. In 1850, defendant, having acquired title to a portion of the intervening lands, constructed tracks thereon, removed that portion of the trunk over said tracks without Arnold’s knowledge, and constructed another trunk under the tracks, through which the water was conveyed, and then raised, by a penstock, into the part of the old trunk, near the factory. Arnold forbore to prosecute defendant upon the assurance of its agent that it would make the water-course as good as new at its expense, and would keep the new structure in repair. This it afterward refused to do. Arnold used the water that flowed through the new structure, and kept it in repair. It diminished his water-power, and the expense of maintaining and using the same was increased. Arnold died in 1864, leaving a will, by which he devised all his rights and interests, above specified, to plaintiffs. Held, that Arnold’s easement was such an interest in land as could not be modified or discharged, save by conveyance in writing or operation of law; that it was property within the meaning of article 1, section 6 of the Constitution, and, therefore, could not, nor could any portion of it, be taken for public use without compensation; that the use of the power thereafter was not an acquiescence in the change, or an acceptance of the new structure as compensation, and did not affect his right to insist upon compensation for the taking of the right to carry it above the surface, or for compensation for the loss sustained by the diminution of the power and the increased expense ; that Arnold, at the time of his death, still had the right of carrying the water above the surface, which, under the will, became vested in plaintiffs; that this right of enjoying such easement was a continuous one, and the unlawful preventing its exercise a continuous injury, and that, therefore, the statute of limitations did not bar plaintiffs’ claim for the injuries sustained since they acquired title. James Emott for the appellants. Elliott F. Shepard for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads for reversal and new trial. All concur, except Rapallo, J., not sitting; Folgeb, J., not voting Judgment reversed.