Stout v. M'adams

• Court: Illinois Supreme Court
• Writing for the Court: WILSON
• Citation: Stout v. M'adams, 2 Scam. 67, 3 Ill. 67, 1839 WL 2867, 33 Am.Dec. 441 (Ill. 1839)
• Decision Date: 31 December 1839
• Parties: THOMAS STOUTv.WILLIAM M'ADAMS.

2 Scam. 67

3 Ill. 67

1839 WL 2867 (Ill.)

33 Am.Dec. 441

THOMAS STOUT

v.WILLIAM M'ADAMS.

Supreme Court of Illinois.

December Term, 1839.

This was an action on the case, brought by the plaintiff in the Bond circuit court, and removed by change of venue to the Fayette circuit court.

The declaration sets forth that the plaintiff was possessed, as of his own right, of a certain tract of land in Bond county, on which he had erected a mill, and that the defendant erected and kept up a mill and dam below plaintiff's mill, thereby causing the water to overflow and flood plaintiff's mill, to his damage, etc.

The defendant pleaded not guilty.

The cause was tried at the October term, 1837, before the Hon. Sidney Breese and a jury, and judgment rendered for the defendant.

The cause was brought to this court by writ of error.

F. FORMAN and J. SEMPLE, for the plaintiff in error, cited 10 ohns., 241; 17 Johns., 307; 15 Johns., 213; 2 Stark. Ev., 910, note a; 6 East, 213, 208.

A. COWLES, J. B. WHITE, and H. EDDY, for the defendant in error, cited 17 Johns., 306; 15 Johns.; 3 Johns., 282; 17 Mass., 289, 296.

WILSON, Chief Justice, delivered the opinion of the court.

The plaintiff below alleges that he is the owner of a mill on Shoal creek, and that the defendant has erected a dam on the same creek, below his mill, and thereby flooded and overflowed his mill, so as greatly to damage it. The defendant pleaded the general issue. Several exceptions are taken to the opinion of the court on the trial below. The first exception relates to the decision of the court in admitting the title deeds of the defendant to be read in evidence, and rejecting those of the plaintiff. It does not clearly appear from the bill of exceptions upon what grounds the court refused to permit the plaintiff to give in evidence his title to the land on which his mill was erected; but as possession is sufficient to entitle the plaintiff to maintain his action, and as the correctness or incorrectness of the rejection of his title papers can not be determined from the facts disclosed, we give no opinion on this point.

The instructions which the court gave to the jury, and its refusal to give such as were asked for by counsel for the plaintiff, are also assigned for error. The instructions asked for by the plaintiff were, “that if the jury believed from the testimony, that the water from the defendant's mill dam flooded the wheel of the plaintiff, they are bound to find for the plaintiff, the amount of damages proved to have been sustained by him; and that it is immaterial in this case which party commenced work or finished his mill first, unless they further believe that the defendant had a right, by prescription or otherwise, to flood the water as aforesaid.” This instruction the court refused to give, but instructed the jury, “that he who first occupies the site and constructs a mill and dam, will be entitled to the use of as much water as will turn his wheels, if the privilege will afford it, notwithstanding he may, by such occupation, render useless the privilege of another, either above or below him, upon the same stream;” and further, “that upon legal principles every person has a legal right to the use of the water flowing through his land, and to use it in a reasonable manner only; and if ...