Campbell v. West & Mathis

By the Court, Rhodes, J.: This is an action to prevent the defendants from maintaining, and to cause to be abated as a nuisance, a water ditch which was constructed, and was and still is used, to convey water for mining purposes. ' The ditch was constructed between 1856 and 1857, and all the right or title therein which was acquired by the person who constructed it is vested in the defendants. The plaintiff acquired the title to certain tracts of land over which the ditch runs, under two patents from the United States, which were issued to the plaintiff’s grantor in 1860 and 1861, and a duplicate certificate and receipt issued by the Receiver of the Land Office, at Marysville, to the plaintiff’s grantor in 1864. The defendants pleaded, among other defenses, the Statute of Limitations. The action was commenced April 4th, 1870. The defendants had judgment. The Court found for the defendants on the issue of adverse [648] possession, and although on some points there was a conflict in the evidence, there was sufficient evidence, if the Court gave the greater credit to the testimony of the defendants, to justify the finding. That the use commenced and continued up to the commencement of the. action under a claim of right, and that it was peaceable, without interruption, open, notorious, and exclusive, and that it was maintained with the knowledge' of the plaintiff and his grantors after they acquired title, the evidence leaves but little doubt, and justified the Court in finding the adverse possession—or prescription, as it is usually denominated, when the issue relates to an easement. The other points need not be noticed, as the finding on that issue is decisive of the case. Judgment and order affirmed. • .