Postlethwaite v. Payne

• Decision Date: 26 November 1856
• Citation: 8 Ind. 97
• Parties: Postlethwaite and Others v. Payne
• Court: Indiana Supreme Court

8 Ind. 97

Postlethwaite and Others v. Payne

Supreme Court of Indiana

November 26, 1856

From the Dubois Circuit Court.

The judgment is affirmed with 5 per cent. damages and costs.

A. L Robinson, for appellant.

OPINION

Perkins J.

Payne sued Postlethwaite and others, for injury which had occurred to his land and mill by means of water backed upon them by a dam maintained by said Postlethwaite et al., across Patoka river.The defendants, in their answer, denied the complaint; alleged a license from Payne; and averred "That the defendants have a clear right to maintain said dam, because they say that it was erected in the year 1826 by Chapman and Miller, to propel a grist and saw mill, which has been continuously maintained and used by them, and by other persons, including the defendants, without molestation or hindrance, who claim and have possession of the same through and under the said Chapman and Miller, from the year 1826 until the commencement of this suit, and at that time they had peaceable possession, and were using the said dam to propel a saw-mill, as they lawfully might."

A demurrer was sustained to this paragraph of the answer.There was a trial of issues by a jury.Verdict and judgment for the plaintiff.

The Court instructed that "The continuance of an unauthorized dam or obstruction in a stream or water-course, even for a great length of time, of itself, confers no right upon the parties to further maintain the same, to the injury of any other person interested in the use of the stream."

On the trial, the plaintiff gave in evidence a suit that had been brought by him against occupants of the mill dam within twenty years, but which was dismissed upon a compromise.The defendant excepted.

It was also proved that the dam complained of--originally built more than twenty years prior to this suit--had been raised a foot in height within twenty years.

Some little confusion would seem, perhaps, to have existed below, from confounding questions upon the rights of neighboring riparian proprietors to appropriate to use the flow of water through or adjoining their lands, by means of dams, etc.; and the power of one to acquire, by user, the right of an easement of flowage upon the lands of another; which latter is the question arising in this case, and the language used must be understood accordingly.

Title to real estate may, by virtue of the statute of limitations, in effect, be obtained by possession.And title to easements, which are susceptible of but a quasi possession, may, in effect, be acquired by enjoyment.Because from proof of the one, in the one case, and the other, in the other, a grant may be inferred.

But the possession or enjoyment, to have such effect, must be:

1.Under claim of right.

2.It must be uninterrupted--undisputed.

3.It must be for twenty successive years.

Perhaps there may be other qualities, as, with the knowledge, actual or presumed, of the person against whom such a title is set up; but the three we have above stated are sufficient for the purposes of this case, so far as relates to the general doctrine of adverse possession.There is, in relation to easements, a point which must be mentioned:

4.That, at least, as the general rule, they must have been enjoyed in the same degree--to the same extent--as claimed in the suit involving them.

Applying these principles to the case before us, the questions arising in it are easily solved.

The paragraph in the answer setting up title by prescription, by twenty years possession, or user, was bad because it did not aver that that possession or user, was as of right, or, under claim of title.If the user was by leave and license,--by authority of the then owner,--or...