Washington Reports Volume 79

Washington Reports Volume 79

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1914 edition. Excerpt: ...that the appellant would thereafter either let sufficient water flow in the river to supply the spring, or would build a dam in the river below the spring to keep the water at the height necessary for that purpose. We think the evidence clearly preponderates in favor of the fact that the respondents' decedent never acquiesced in the appellant's use of its dam in such way as to injure the spring, and that the use of the dam was permitted upon the understanding testified to by these witnesses, which was, for a time at least, complied with by the appellant. "The subsequent negotiation between the plaintiffs and the defendant, for a purchase, by the plaintiffs, is the strongest evidence to show that the use of the water on their part had not been adverse." lVatki/ns v. Peck, 13 N. H. 360, 40 Am. Dec. 156. Upon the evidence, the court would have been justified in finding that the injurious effect of the dam was not discovered until the summer of 1902; that the operation of the dam so as to injure the respondents' spring was not continuous for ten years even from the construction of the dam in 1901, and that its maintenance was merely permissive, on condition that Apr. 1914 Opinion Per ELLIs, J. the dam should be so operated as not to injure the respondents' spring. In either case, the right to impound the water to the respondents' damage is not prescriptive. The burden was upon the appellant to prove an adverse, hostile, continuous and uninterrupted use under a claim of right. District of Columbia 1). Robinson, 180 U. S. 92. It failed to maintain this burden. We are not impressed with the appellant's claim that the filing of the plat of its proposed location conferred directly upon it the right...
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Product details

  • Paperback | 284 pages
  • 189 x 246 x 15mm | 513g
  • United States
  • English
  • Illustrations, black and white
  • 123676126X
  • 9781236761262