Crosby v. Bessey

The opinion of the Court was drawn up by Goodenow, J. This is an action on the case, to recover damages of the defendant, for throwing the ground bark, from his tannery, into the stream upon which said tannery is situated, the same bark being carried by the current down the stream and deposited on the plaintiff’s land below, to his injury. The defendant, by his brief statement, claims a right to throw bark from his tannery into said stream, by prescription. The verdict was for the plaintiff. And the jury found specially, in answer to questions propounded to them by the Court, that the defendant, and those under whom he claimed, had been accustomed for a period of twenty years successively, before the bringing of the suit, to put or turn the refuse ground bark made at the tannery, now owned and occupied by him, or some part of it, into said stream. And they also found, that the same bark had not annually been deposited upon the plaintiff’s land below, during the said twenty years; and that such deposits of bark had been made on the plaintiff’s land only about six years. • The plaintiff could have no right of action until he was injured. There had been no such adverse and long continued occupation of the plaintiff’s land by the defendant, as a place of deposit for his bark, as to create a presumption of a grant. We are not able to perceive any error in the instructions which were given, or any necessity for those vChich were requested, in addition to those given, and refused. Exceptions overruled. — Judgment on the verdict. Tenney, C. J., Rice, May, Davis and Kent, JJ., concurred. *