Gerenger v. Summers

• Decision Date: 30 June 1842
• Parties: BOSTON GERENGER v. LUDWICK W. SUMMERS.
• Court: North Carolina Supreme Court

2 Ired. 229

24 N.C. 229

BOSTON GERENGER

v.LUDWICK W. SUMMERS.

Supreme Court of North Carolina.

June Term, 1842.

The ground on which is presumed a grant of the privilege of ponding water on another's land for the purpose of a mill is, that it has been enjoyed by the person claiming and those with whom he connects himself for twenty years or more in the state or to the extent to which he claims.

It is no answer to this presumption that the height of the water had been sometimes lowered by a drought, or that the water had been occasionally let off for the purpose of repairing the mill, and only for the period required for such purpose.

The cases of Wilson v Wilson, 4 Dev, 154, and Pugh v Wheeler, 2 Dev. & Bat. 50, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Guilford county, at Spring Term, 1842, his Honor Judge DICK presiding: The plaintiff filed his petition to recover damages from the defendant, for flooding the plaintiff's land, and obstructing his mill and wheels by the erection of a dam across a stream on the defendant's own land. The plaintiff proved that he erected a grist and saw mill on the Reedy Fork of Haw River in the year 1826, and that he had been in the use and occupation of the same ever since--that the defendant, who is the owner of a mill on the same stream, below the plaintiff's mill, in the year 1839 built a new dam across the stream, about thirty-five feet above the defendant's former dam--that, since the erection of the new dam by the defendant, the water was raised to the gudgeons of his saw mill wheel, and that the water stood about six inches on the floor on which his grist mill wheels rested, his grist mill being of the construction called a tub mill. The plaintiff alleged that the water was thus raised on his mill wheels by the new dam of the defendant, and that he was thereby greatly injured. The defendant proved that a mill-dam had been erected before the revolutionary war, and was then known as Whitsett's mill, and had been kept up ever since--that about the year 1796, his father, Peter Summers, purchased said mill, and in the year 1812 rebuilt the dam, and raised it about one foot higher than it had been before--that for several years before 1839 the dam had become very much dilapidated and leaked very much, so much so that the dam was rarely full of water unless in the time of a swell in the stream--that in the summer of 1839 he erected his new dam thirty-five feet above his old dam--that the new dam was made tight. The defendant alleged that the new dam was not as high as the old dam, and that he had not raised the water higher (if as high) than it was raised by the old dam--that he and his father, under whom he claimed, had been in uninterrupted possession from the year 1812, until the plaintiff filed this petition--that, having been in the uninterrupted possession more than twenty years, the law presumed a grant of an easement or privilege of ponding the water on the plaintiff's land. The defendant further alleged that the injury done to the plaintiff's mill wheels arose from the sinking of the foundation, on which the plaintiff's mills were erected, and not from raising the water higher than it was before the new dam was erected. Upon the comparative height of the old and the new dam of the defendant, much evidence was offered by both parties, both as to observations made from levelling, and from water marks on the margin of the defendant's pond, and along the stream from one mill to the other. The defendant also offered evidence to prove that the foundation, on which the plaintiff's dam and mills rested, was not good, and was liable to be washed out in freshets. The plaintiff's counsel contended that the presumption of the grant of an easement did not arise in this case, for the erection of the plaintiff's mill in 1826 rebutted such presumption.

The judge left it to the jury to determine from all the evidence on both sides, whether the new dam was higher than the old dam of 1812, and whether by it the water had been thrown back on the plaintiff's land and mill wheels--that if they should so find, the plaintiff would be entitled to recover damages. The judge further instructed the jury that if they should find the fact to be, that the defendant and...