This was an action of trespass on the case for ponding water on the plaintiff’s land, by means of a dam erected on the defendant’s land. It appeared that a branch or natural drain passed through the lands of both the plaintiff and the defendant, the defendant’s land lying below that oí the plaintiff.
Decided 1843-06-05
Daniel, J.
¶1
Whether the sixteen years undisturbed
user
of the dams by the defendant, taken together with the four years discontinuance of the dam of 1831, by contract with his son, is or is not sufficient in law to raise a presumption of a grant to him of the privilege to dam the drain and throw back the water on the plaintiff’s land, is a question not necessary for us now to decide. For it is admitted, that there was no evidence in the cause, that the water was ever ponded, by means of the erection of the old dam
75
yards down the stream, to as high a point on the plaintiff’s land, as it was by the dam made by the defendant in the year 1842. The plaintiff was then certainly entitled to recover, under any aspect of the case. The damages assessed are but nominal, and the defendant has no right to complain.— The judgment must be affirmed.
