State v. Suttle

Decision Date27 December 1894
Citation115 N.C. 784,20 S.E. 725
CourtNorth Carolina Supreme Court
PartiesSTATE. v. SUTTLE.

Reservation in Deed—Right to Raise Milldam —Easement—How Divested—Adverse Possession—Nuisance.

1. The reservation of the right of "raising and rebuilding" a milldam, "in case it washed away, " reserves the right to raise as well as to rebuild the dam.

2. An easement reserved in a deed is not affected by the fact that deeds of the land to subsequent grantees do not mention it.

3. The mere cultivation of land upon which the owner of a milldam has the right to back water is not an act of possession adverse to such owner.

4. The erection of the frame of a milldam, which, when completed, will pond the water back, and thereby create a nuisance, does not itself constitute a nuisance.

Appeal from criminal court, Buncombe county; Jones, Judge.

D. D. Suttle was convicted of destroying a certain milldam, and appeals. Affirmed.

This was an indictment under section 1087 of the Code, charging the defendant with cutting away and destroying a certain milldam, the property of John Hildebrand, tried in the criminal court of Buncombe county, before Jones, J. The defendant pleaded not guilty. The counsel contended, among other things, that if he did destroy so much of the dam as would bring it down to the height of the original dam before Hildebrand rebuilt and raised it, he did it in the exercise of his right to abate the public nuisance. The prosecutor conveyed a tract of land to three persons, in 1889, by deed containing the following clause: "Reserving and excepting to the parties of the first part, their heirs and assigns, the perpetual right and privilege of backing water from their milldam on the land herein conveyed, and of raising and rebuilding the dam in case it washed away, at their pleasure, and all without cost, charge, or expense to said parties of the first part, their heirs and assigns, on account of land damaged thereby or on any account; the parties of the second part, their heirs and assigns, being allowed to take all the ice that may be in the pond, and the right also of hauling out the mud that may accumulate in said pond."

The Attorney General and Locke Craig, for the State.

AVERT, J. The right was reserved in the original deed in clear and unmistakable terms to raise as well as to rebuild the dam. Those who took title to the land subject to the servitude had no just ground to complain of the exercise of this right, and were In no better condition before the court, when indicted under section 1087, of the Code, than any other person who...

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17 cases
  • Reed v. Elmore
    • United States
    • United States State Supreme Court of North Carolina
    • May 22, 1957
    ...in our reports which deals with the factual situation here presented. It might have arisen under the deed referred to in State v. Suttle, 115 N. C. 784, 20 S.E. 725, if the grantee had undertaken to harvest ice from the mill It was said in Norfleet v. Cromwell, 70 N.C. 634: 'The principle i......
  • Seymour Water Co. v. Lebline, 24672.
    • United States
    • Supreme Court of Indiana
    • May 15, 1924
    ...N. E. 1030;Perry v. Carey, 68 Ind. App. 56, 60, 119 N. E. 1010;Vandalia R. Co. v. Wheeler, 181 Ind. 424, 103 N. E. 1069;State v. Suttle, 115 N. C. 784, 788, 20 S. E. 725;Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128;Edgerton v. McMullen, 55 Kan. 90, 39 Pac. 1021;Gassert v. Noyes, 18 Mon......
  • Seymour Water Co. v. Lebline
    • United States
    • Supreme Court of Indiana
    • May 15, 1924
    ...conveyance of the millsite as an appurtenance, without special mention in the deed. Eshelman v. Snyder (1882), 82 Ind. 498, 501, 502; State v. Suttle, supra. Instruction No. 5 was inconsistent with the law as declared, in that it singled out an intermediate conveyance of the millsite in whi......
  • Shaffer v. Gaynor
    • United States
    • United States State Supreme Court of North Carolina
    • October 22, 1895
    ......C.) 499, Chief Justice Pearson said: "It is settled law that both kinds of evidence are competent in questions of private boundary in this state. * * * In the latter, to wit, hearsay evidence, it is necessary as a preliminary to its admissibility to prove that the person whose statement it ...Id., 114 N. C. 536, 537, 19 S. E. 607; Osborne v. Johnston, 65 N. C. 26; McLean v. Smith, supra; State v. Suttle, 115 N. C. 788, 20 S. E. 725; Boomer v. Gibbs, 114 N. C. 85, 19 S. E. 226. The digging of ditches and constructing roads through swamps for the ......
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