Myers v. Bell

CASE. The declaration alleged, that the plaintiff was seised and possessed of a certain tract of land in Cass county [250] containing 320 acres, being part “ of two and a half sections reserved to one George Gicott■ by treaty,” &c., known by the name of the “ Gicott Reservethat the defendant was possessed of a certain tract of land adjoining the premises of the plaintiff; that a water course flowed through both tracts; that across the stream, on said land adjoining the plaintiff’s, the defendant built a mill-dam, and thereby caused the back-water to overflow a part of the plaintiff’s premises, &c. Special plea, that before the committing of the supposed grievances, the Circuit Court of Cass county, in a suit in chancery wherein the defendant was complainant, and the heirs of George Gicott were defendants, had decreed that a certain tract of land (describing it) containing 320 acres, on which a mill, dam, and race, were situate, and which was a part of the “ Gicott Reserve,” should belong to said defendant and his heirs; and that the heirs of Gicott, their heirs, and all persons claiming under them or any of them, should be perpetually enjoined from hindering or molesting said defendant, his heirs, &c., in the enjoyment of said premises and every part thereof, or from hindering or molesting ,him from the full enjoyment of all and singular the water privileges attached and belonging to said premises ; and that the plaintiff derived title to his land, mentioned in the declaration, from the heirs of Gicott subsequently to the rendition of said decree. Held, on general demurrer, that the plea was insufficient.