Volume 71 — Sickels

This action was brought to recover damages for the alleged unlawful taking of water by the defendant from the Tonawanda creek, on which the plaintiff had a mill, during the years 1873-1879. The defendant pleaded as a defense the right to take the water for its engines. The plaintiff proved a prior judgment in an action brought by him in equity, to enjoin the defendant from using the water of this stream, and to recover the damages caused by the use from 1868 to 1873.

This action was brought to recover damages for alleged negligence. Defendant employed one Fish to work as a mason on and to superintend the construction of a chimney attached to an engine-house. Held: that the negligence causing the injury was that of a co-employe, and that a refusal to nonsuit was error.