Meyer v. Horst

The opinion of the court was filed Per Curiam. A prescriptive right to the use of the water is not averred in the declaration. It is the saw mill which is declared to have been there from time immemorial. The averment is that the plaintiff below was seised in his demesne as of fee of and in the land, with the appurtenances. It was not necessary to aver in the declaration in what way or manner he acquired title, nor the precise time. It was sufficient to aver the existence thereof in him at the time of the commission of the injury complained of. If force used in the removal of the, splash boards was made the gist of the action then there would he reason for holding that ease would not lie ; hut that is not the averment. The substantial grievance alleged is diverting the water of the stream from the mill, whereby its use and profits were lessened. The removal of the splash boards was only the means whereby the consequential damages claimed were produced and sustained. No recovery was sought for or claimed, but these consequential damages. Case therefore may ho sustained. The cause was well tried and properly submitted. Judgment affirmed.