Gerrish v. Clough. J. H. George, for plaintiff. Pike, for defendant. SARGENT, J. It is very well settled that land formed on one side of a stream of water by the variations in the channel, caused by the natural flowing of the water therein, belongs to the owner of the land on that side of the stream. These natural accretions are entitled to the same protection, when once acquired, that the original inclosure would have been. Either party may protect himself against any anticipated change of that kind by rubbling or securing his bank in any way that shall keep the channel in its present location, if he do not thereby injure or raise the water upon his neighbor's land, either above or opposite to him. Scratton v. Brown. 4 B. & C. 485; Rex v. Lord Yarborough, 3 id. 91; Adams v. Frothingham, 3 Mass. 352; Rex v. Trafford, 1 B. & Ad. 874; Jones v. Soulard, 24 How. (U. S.) 41; Rix v. Johnson, 5 N. H. 520. It is claimed that the doctrine of reasonable use should come in here, in the use of measures for self-protection, and the case of Bassett v. Salisbury Man. Co., 43 N. H. 569, 577, is cited as an authority. But that case evidently does not apply here. The reasonable use doctrine of that case was applied to percolation where there was no water-course, and that case has no bearing on this case. The jury were instructed in that case (p. 571) that, if there was a water-course on plaintiff's land, the defendants could not raise the natural level of the water in the water-course on plaintiff's lot; and so was the decision in Amoskeag Co. v. Goodale, 46 N. H. 53. The doctrine of the right of reasonable use is applied to watercourses in a class of cases, as in Hayes v. Waldron, 44 N. H. 580; but, in those cases, the question arises between one riparian owner who uses the water of the stream as it passes through his land for some particular purpose, and the riparian owners below him on the same stream. This distinction is noted in Bassett v. Salisbury Co.. 43 N. H. 578, where it is said that the views in relation to the right of reasonable use, as above noticed, are not necessarily in conflict. with the cases which hold that a riparian proprietor below has in general no right to raise the water of a stream above its natural level on land of a riparian proprietor above. This doctrine of reasonable use, as applied to water-courses, is Gerrish v. Clough. applied, so far as we know, only to a use of the water in some ordinary and common sense. But in this case defendant made no use of the water on his land, but was simply trying to prevent the water from destroying his land. Suppose the defendant owned the plaintiff's land, and (owning on both banks) he should build a dam across the river to prevent the river's washing away his bank, and should thereby flow a piece of plaintiff's land up the river, he would clearly be liable, according to Amoskeag Co. v. Goodale and all the authorities. It could make no difference whether he built the dam to protect his land or saw logs. Whatever his object, he would have no right to raise the level of the river on plaintiff's land up stream. The doctrine of reasonable use does not apply to a dam raising the height of the water above the dam. Now the plaintiff's break-water was a dam, or in the nature of a dam. It makes no difference that it did not extend across the river. Many dams made for use extend only part way across the stream. It is immaterial whether the dam be long or short, whether it be a break-water or any other obstruction. Its form, character and extent are of no account if it raises the height of the river on land of others above the obstruction. Suppose, in clearing his land of stones, the plaintiff dumps them into the river to get rid of them, thereby filling up and obstructing the channel of the river, and thus raises the water on land of others, he would be liable, and there would be no question of reasonable use, nor would it make any difference whether the land flowed were ten rods above the obstruction, or ten feet, or one foot; nor would there be any difference in principle whether defendant owned the land on both sides of the stream at the place of the obstruction, and the plaintiff's land that was flowed was ten rods above, or whether defendant owned but one bank of the stream and the plaintiff owned the other bank opposite, which was flowed in consequence of such obstruction. The general rule would seem to be that whether a riparian owner uses the river or not, he cannot, either in the use of the water or in the pursuit of any other object, raise the height of the water in the river on land of others above his obstruction. The instructions to the jury were substantially to that effect. "To turn the current of the river so as to throw it over on to the plaintiff's land," is merely to raise the height of the water above its natural level on the plaintiff's land, by defendant's break-water operating as a dam or an obstruction. Gove v. The Farmers' Mutual Fire Insurance Company. It would seem that a different rule had sometimes been applied where the lands border upon the sea or ocean. In Rex v. Pegham, 8 B. & C. 355, it was held that all owners of lands exposed to the inroads of the sea might properly erect such works as are necessary to protect their lands, although such works may cause the sea to flow with more force upon the land of another than it would have done without such protection. But the distinction between that case and the case of ordinary water-courses, is recognized in England, as will be seen by the remarks of Lord TENTERDEN, C. J., in Rex v. Trafford, supra. He says: "It is a well-known fact that the sea occasionally, by some change proceeding from natural and unknown causes, makes gradual inroads on parts of a coast which had been free from its waters for centuries. On such occurrences it has been compared, and justly compared, to a common enemy, against which every person may defend himself as he can; but this is perfectly different from an occasional course of superabundant inland water," etc. In regard to ordinary water-courses, it seems well settled that a riparian proprietor, for his own protection or convenience, has no right to build any thing which in times of ordinary flood will throw the water on the grounds of another proprietor so as to overflow and injure them. One may protect his own property; but "though the river threatens to change its channel and to encroach upon your land, you cannot protect yourself to the prejudice of the opposite proprietor." Angell on Water-courses, §§ 330-334, and cases cited. We think the instructions were correct, and there must be Judgment on the verdict. GOVE V. THE FARMERS' MUTUAL FIRE INSURANCE COMPANY. The plaintiff's buildings, which were insured, were intentionally set on fire by his wife, who was insane, and who had been left alone by the plaintiff. It appeared that she had frequently been left alone before this occasion. In an action on the policy of insurance, held, that the plaintiff, in leaving his wife alone, had not been guilty of such a degree of negligence as would constitute a defense for the defendants. Gove v. The Farmers' Mutual Fire Insurance Company. THIS was an action on a policy of insurance issued by the defendants. The following facts were agreed upon: The property insured was destroyed by fire on the 19th day of March, 1867. The plaintiff was the owner of two undivided third parts of the same. The buildings were intentionally set on fire by the wife of the plaintiff, who was insane at the time, and is now in the asylum at Concord. She had not been in the asylum before the fire, and had frequently been left alone two or three hours at a time before this day. She was left alone on the day of the fire, and at the time it happened. Morrison & Stanley, for plaintiff. Eastman & Cross, for defendants. NESMITH, J. The doctrine now appears to be well settled by the authorities, that a loss by fire on land, occasioned by the mere fault and negligence of the insured party, his servants or agents, without fraud or design, is a loss protected by the policies, and as such recoverable from the underwriters. Judge STORY, in Waters v. The Merchants' Louisville Ins. Co., 11 Pet. 213; Sherwood v. General Mutual Ins. Co., 14 How. 351; 3 Kent's Com. 374, and notes; Ruck v. Royal Exchange Co.; Angell on Ins. §§ 124, 125, d 122 2 Barn. & Ald. 73; Dixon v. Sadler, 5 M. & W. 405; 8 id. 894; Shaw v. Robarts, 6 A. & E. 75. Generally, negligence is not design. Catlin v. The Springfield Fire Ins. Co., 1 Sum. 434. The court in the state of New York, say that before this ground of defense can be made available, there must be evidence of such a degree of negligence as will evince a corrupt design. Hyndes v. Schenectady County Mut. Ins. Co., 16 Barb. 119. There are cases of gross neglect which are, in law, deemed equivalent to a fraudulent purpose or design, founded on the consideration of doing nothing, when the slightest care on the part of the insured would prevent a great injury. Judge SHAW supposes the case where the insured, in his own house, sees the burning coals in the fire-place roll down on his wooden floor, and does not brush them up. This would be nonfeasance, and evidence of a culpable recklessness and indifference to the rights of others. He also supposes the insured premises to take fire, and the flames beginning to VOL. II.-22 Gove v. The Farmers' Mutual Fire Insurance Company. kindle in a small spot, which a cup of water might put out, and the insured has the water at hand but neglects to put it out. This, also, would be culpable negligence, manifesting a willingness differing little in character from a fraudulent and criminal purpose to commit injury to others. Chandler v. Worcester Mut. Fire Ins. Co., 3 Cash. 328; 31 Me. 219; Huckins v. Insurance Co., 31 N. H. 238; Angell on Ins. § 130. It would be fair to infer a fraudulent intent in the insured, as would be indicated in a forbearance to use all reasonable exertions to save his property from the ravages of fire, when ample preventative means and ability are at hand. Evidence of this kind of negligence will tend to discharge underwriters and insurers from their liability in case of loss. There are some cases where it has been held that the insured is entitled to indemnity, though the loss occur from the gross carelessness of his servant, the proximate cause being only looked to, and fraud being absent. Gates v. Madison County Mut. Fire Ins. Co., 1 Seld. 469; approved and followed in Matthews v. Howard Ins. Co., 1 Kern. 9; 1 Duer, 371. From the aforesaid cases we may derive a knowledge of some of the leading principles applicable to questions of indemnity by fire insurance companies, where negligence is imputed to the insured, his agents or servants. One remaining duty is to inquire how far any of the aforesaid rules will govern the case before us. The defense suggested by the defendants is, that the plaintiff, the husband of his insane wife, and part owner of the property, alleged to be insured by the defendants, left his wife alone on the day of the fire for some time, it does not appear how long, and that she intentionally set her husband's buildings on fire. The case finds the wife was insane at the time of committing the act. It appears to us, it would be a misnomer of terms that she, being admitted to be in this state, could so far control her reasoning powers as to be able to plan or design the act done by her beforehand, in such a manner as to render herself responsible as a moral agent. The word insane implies unsoundness or derangement of mind or intellect, not a mere temporary or slight delirium which might be occasioned by fever or accident; and we cannot attach moral accountability to a wrongful act admitted to be done by an insane person. Then, the question recurs, if the wife be admitted to be insane when the fire was set by her, was the husband guilty of negligence in leaving her |