
    
      Nichols v. Aylor.
    May, 1836,
    Ricbmond.
    (Absent Cabell, J.)
    Evidence — Adverse Possession — Case at Bar. — In case by the owner of a mill against the defendant for causing the water in a stream to flow back so as to obstruct the mill, it appeared that the defendant claimed under a person who had obtained leave to build a mill below on the same stream, agreeably to an inquest which provided that the water was not to be dammed higher than a particular log; the dam being raised higher than the log caused the water to flow back upon the plaintiff; the evidence tended to shew that the dam had been higher than the log for more than twenty years, but that the plaintiff had complained of it, denied the right so to raise it, and threatened to sue : Held, 1. the use and enjoyment by the defendant and those under whom he claimed, although it was exclusive and adversary, and existed for more than twenty years, was not conclusive evidence of the defendant’s right, but presumptive merely; 2. that evidence tending to shew that such use and enjoyment was not acquiesced in, but the right thereto contested, was proper evidence to rebut the presumption.
    On the 17th of March 1829, George Aylor brought an action on the case in the supe-riour court of Augusta against John Nich-oís. The declaration alleged that the plaintiff was possessed of a water grist mill, duly and regularly established, and situate on the land belonging to the plaintiff, and that the defendant did voluntarily, by raising a dam, stop the stream on which the plaintiff’s mill is situate, below the said mill, and the water flowed back and inundated and obstructed the machinery and water -works of the plaintiff’s mill, by which obstruction the grinding of the mill became difficult and the plaintiff’s profits we re thereby greatly lessened. Issue was joined on the plea of not guilty, and the jury on the 24th of September 1830, found a verdict for the plaintiff, and assessed his damages to two hundred dollars.
    *At the trial, the plaintiff gave in evidence an order of the county court of Augusta made on the 18th of June 1793, on the motion of Anthony Aylor, setting forth that he desired to build a water grist mill on his lands on Naked creek, and awarding him a writ of ad quod damnum; also the writ, with the return of the inquest, finding that Aylor’s dam did no damage to any of the proprietors, that fish of passage and ordinary navigation were not obstructed, and that the health of the neighbours was not annoyed by the stagnation of the water; and the order of court made upon this return, granting leave to Aylor to build his mill agreeably thereto. The plaintiff farther gave in evidence a deed made the 27th of March 1809, from Peter Pish burn one of the executors of Anthony Aylor, to George Aylor, conveying the testator’s land on Naked creek. The plaintiff also introduced the testimony of several witnesses. 1. Of John F. Can-koff, who proved, that he rented from the plaintiff about 20 acres of the land on which the mill in the declaration mentioned is situate, together with said mill, from the latter part of November 1827 until the latter part of November 1828, for the sum of 100 dollars; that he attended the said mill, and a saw mill near the same, on the said 20 acres, and enjoyed the proceeds under his lease; that during the lease the defendant repaired or rebuilt his dam on the same stream, below the said mills of the plaintiff ; that after such repairing or rebuilding -was completed, the witness found that his enjoyment of the plaintiff’s mills aforesaid was impaired, in consequence of the water being backed in plaintiff’s tail race more than it had been previously ; that the injury sustained by the witness was in consequence of not being able to run the grist mill and saw mill at the same time, so constantly as he could before, by reason of the back water aforesaid; that the grist mill could be run as constantly as before, but the saw mill could not be run as constantly, at the *same time; that he thought the grist mill ran somewhat slower than before; that he thought himself injured about 40 dollars by the diminution of sawing; and that he had no knowledge of the situation or condition of the dam and mills of the plaintiff, or of the dam and mill of the defendant, previous to his lease aforesaid.
    2.The testimony of Martin Orebough, who proved, that on the 31st of August 1829 he measured the depth of water over a sill in the stream, about 16 feet below the plaintiff’s line, and about 160 yards below the plaintiff’s mills, and found the depth upon said sill to be 20 inches; that on the 20lh of August 1830 he again measured the depth of water on said sill, and found it to be 16 inches, and also measured the depth of water on the apron of plaintiff’s mill wheel, and found it to be two inches; that he had no knowledge what was the depth of water on said sill and apron at the time this suit was instituted, but had not observed that it varied from what it wras at the time of said measurement; that he had known the said mills and dam of the plaintiff about eight or nine years, but was unable to say whether the backing of the water from the defendant’s dam had ever varied during his observation, except that at some times it was greater than at others, owing to the defendant’s dam being full or otherwise; that at some times he could see a current over said sill, when the gates of the defendant’s dam were drawn, and at other times, when said dam was full, it was dead water over said sill; and that the length of the apron aforesaid was about five feet. The sill spoken of by the witness is the log mentioned in the inquest of the jury found on the writ of ad quod dam-num which issued on the application of Hugh Donaghe. [This inquest is recited after the statement ot the evidence on the part of defendant — where see it.]
    3. The testimony of John Taylor, who proved that from the 1st of March to the last of October 1827 he *attended the said mills of the plaintiff, as miller; that during that time, when the defendant’s dam was full, the water was backed over the aforesaid sill into the plaintiff’s tail race, in consequence of which the witness could not, without much trouble and difficulty, run both wheels (that is to say, the wheels of the grist and saw mill) at the same time; that the backing of the water was often increased by the collection of trash at a water gate in the fence across the stream, some short distance above the sill aforesaid; and that the witness knew nothing of the plaintiff’s mills and dam before he acted as miller aforesaid, or about the state of the water at the time of the institution of this suit.
    4. The testimony of James Campbell, who proved, that he removed to Augusta and the neighbourhood of the plaintiff’s mills, in the year 1795, having visited the neigh-bourhood the previous year; that he lived in that neighbourhood, with the exception of four or five years, until 1812, when he left it, and resided in Bath county until about two years since, at which time he returned to Augusta, and had since resided near the plaintiff’s land; that when he first came to Augusta in 1794, the defendant’s land belonged to Hugh Donaghe; that there was then a dam upon the stream on Don-aghe’s land, about the same place where the defendant’s dam is now, but the present dam is a few feet higher up the stream than the old dam was when he first saw it, at which time one end of the dam rested against an ash tree, but at present that end of the dam is a few feet above the ash tree, •and is connected with it by an offset which rests against said ash tree; that the other ■end of the dam crosses the stream at least five feet higher than the corresponding end ■of the old dam when first observed by the witness; that about thirty years ago, the dam then standing on defendant’s land was washed away; that the witness then assisted John Donaghe the son of Hugh, who at that time owned the said land, in *rebuilding the dam ; that the under logs or foundation being still standing, the dam was rebuilt thereon, of the same height, as the witness believes, with the old dam; that he has since repeatedly assisted in stopping holes in the dam; that the present dam is not higher than the old dam, and the witness believes does not back the water more — the old dam, when full, backed the water to the plaintiff’s mill wheel, and the present dam does the same, when full; — that in the year 1794 the witness had a conversation with Hugh Donaghe, in which the latter stated that his dam backed the water under the plaintiff’s mill wheel; that about two years ago the witness had a conversation with the plaintiff, in which the plaintiff complained that the defendant would not lower his dam, and that he had offered to arbitrate the dispute with the defendant, which he refused. The witness then stated to the plaintiff that the dam was not higher that it always had been, and stated also what Hugh Donaghe had told the witness as aforesaid; to which the plaintiff replied that the dam had always been too high, and that he always complained of it to the said Hugh and the said John Don-aghe. In said conversation between the plaintiff and the witness, the former did not allege that the dam was then higher or backed the water more than at any previous period. — Witness further testified, that when he first came to Augusta, Hugh Donaghe’s saw mill had been built some 3rears, where the defendant’s saw mill now stands, and there was then no grist mill on Donaghe’s land; that a few years after the witness came to Augusta, John Donaghe built a grist mill on the site of the defendant’s present grist mill; that the said dam on the defendant’s land has alwajrs been kept up, except when occasionally washed away, ever since the witness came to Augusta, and the water used, first for the saw mill, and after the erection of the grist mill, for both mills, until the present time, so far as the witness has observed or *understood: that when the witness first came to Augusta, the plaintiff had a dam and a grist mill on his land; that said dam was us.ed by the plaintiff until the witness remo'ved to Bath in 1812, and is still standing, but after the witness’s removal the plaintiff built a new dam for his mills, ten or fifteen feet below his old dam, which is higher than the old dam, and the space between filled up with stones and dirt.
    5. The testimony of Henry Amon, who proved, that some short time (perhaps between six and eighteen months) before the death of John Donaghe, which happened in September 1811, he heard' a conversation between the plaintiff and said John, in which the plaintiff stated to Donaghe, that he was about to repair his mill, and that he wanted Donaghe to take his dam down; to which Donaghe replied, he would not take it down, — that it had stood so long, and he had calculated his gears in his mill according to the height of the dam and the water; and he would not pull it down. At the time of this conversation, Donaghe had workmen engaged in repairing his mill. The said Donaghe’s dam had then been standing a good many years. The defendant’s present dam does not appear to the witness to be higher than the old dam was from the time the witness first knew it, about thirty years ago.
    The defendant then introduced as evidence, an order of the county court of Augusta made on the application of Hugh Donaghe on the 16th of October 1792, as follows — “On the motion of Hugh Donaghe, who desires to build a water grist mill on his lands on Naked creek in this county, a writ of ad quod damnum is awarded him, to be directed to the sheriff, and to be executed on the first Monday in January next, pursuant” &c. — also another order of said county court made on the 16th October 1793, in these words: 1 ‘The writ of ad quod damnum which was granted to Hugh Don-aghe being returned, together with the inquest of the jurors thereto ’‘'annexed, on the motion of the said Donaghe leave is granted him to build a mill agreeable to the report of the said jurors.” The said defendant also adduced, 1. The testimony of Hatch Clarke, who proved, that he had known the dam and mills of the defendant about twelve or thirteen years; that he does not know whether the dam is higher or backs the water more than when he first knew it; that he has not perceived any difference in these respects; that the witness assisted in rebuilding the present dam about two years ago; that it is about the same place with the former dam, which was washed away, but a little higher up on the stream, to keep it from being washed away in consequence of the softness of the earth and the direction of the current: that the witness had a conversation with the plaintiff since the institution of this suit, in which the plaintiff stated, that he had applied to the defendant to arbitrate the controversy, which the defendant refused — that he could not submit to the injury any longer — that he had gone to John Donaghe in his lifetime and told him his dam was too high, to which he replied that he had made his calculations according to the height of his dam, and would make no alterations in it — and that the plaintiff had told Donaghe he would sue him. The witness further testified that within a few years, not exceeding three, the plaintiff has altered his saw mill from a year mill to a flutter wheel with a patent shoot, which from the appearance of the current requires a good deal more water than formerly.
    2. The testimony of John Cotnsey, who proved, that about twelve or thirteen years ago, the dam on the defendant’s land was washed away, and the witness assisted in ■rebuilding it; that it was not rebuilt higher that the former dam, and the witness did not perceive that it backed the water more; that the present dam was rebuilt about two 3'ears ago, about the same place as the dam which the witness assisted to rebuild, one *end of the present dam resting against the ash tree aforesaid, and the other standing a few feet higher up the stream than the corresponding end of the former dam; that the present dam, the witness thinks, is not higher than the one he assisted to rebuild, and he does not know whether it backs the water more than it was formerly backed; that he never examined how far the water was backed at any period; that the foundation of the dam which the witness assisted in building was a marl rock, the lower end of which being washed away by the current, the present foundation is in consequence a little higher up; and that the water is taken out of the dam about the same height as formerly.
    At the time the orders aforesaid of the county court Were read in evidence by the defendant, the writ of ad quod damnum and the inquest of the jury, therein referred to, could not be found; but being afterwards found in the progress of the trial, they were given in evidence to the jury by the plaintiff. The writ bears date the 27th of October 1792, and is in the usual form. The inquest of the jury is dated the 7th of January 1793. It finds that no mansion house or office, curtilage, garden, orchard or lands will be overflowed, no fish of passage nor ordinary navigation be obstructed, nor the health of the neighbours be annoyed; and it directs that the water shall not be raised by the dam farther than a certain log in an old dam.
    It was proved on the part of the plaintiff, that he has been in possession and enjoyment of the land on which his said mills and dam are situate, upwards of thirty years.
    On the part of the defendant it was proved that he purchased the land on which his said mills and dam are situate, from the heirs of John Donaghe, about eight years ago, about which time the same was conveyed to him; since which he has been in the possession and enjoyment thereof.
    *And this being all the evidence introduced on the trial, after the same had been heard, the defendant’s counsel moved the court to instruct the jury, that if they believed that the alleged grievance in the declaration mentioned was the mere consequence of the defendant’s use and enjoyment of the water of the stream in said declaration mentioned, by means of his dam for the propelling of his mills, and that said defendant, orior to said alleged grievance, had been in such use and enjoyment for more than twenty yrears, and that such use and enjoyment was exclusive and adversary foe more than twenty years immediately before the alleged grievance, — • then, such exclusive and adversary use and enjoyment was to be regarded by the jury as conclusive evidence of the defendant’s right to the use and enjoyment of the said water, to the extent of said exclusive and adversary use and enjoyment. But the court refused to give the instruction asked, and in lieu thereof gave the following instruction, to wit: “The inquest of the jury authorized Hugh Donaghe to raise a dam that would deepeii or throw the water back in Naked creek to a sill a few feet below Aylor’s line. No height is specified for the dam. On erecting his dam, if Donaghe found that the water would flow further up than the sill, and extend upon the lands of Aylor, he ought to have obtained a second writ of ad quod damnum, and asked the permission of the court to raise it to the height he wanted it. Those claiming under him now claim a right to keep the dam at its present height, from twenty years quiet possession, and asked the court to instruct the jury to the effect that twenty years quiet possession, acquiesced in and admitted by Aylor, would bar his action, because the law would presume that he had granted the right of flowing the water on his lands: but the testimony which Aylor has produced respecting his complaints from time to time of the injury he sustained from the refluent water, and the evidence by *which he attempted to shew that the present dam of the defendant is higher than the former dam, and the present injury complained of is of more recent date than the time of erecting the dam, is proper evidence to rebut the presumption that Ay-lor ever did consent to raise the dam higher than was contemplated by the inquest of the jury in 1793.” — To the opinion of the court refusing the former and giving the latter instruction, the defendant excepted.
    The defendant then moved the court to instruct the jury, that if they should believe, from the evidence in the cause, that more than twenty years before the grievance complained of in the declaration, the defendant was in the use and enjoyment of the water of said stream, in the manner and for the purpose aforesaid, and that the plaintiff at that time complained to the then proprietor of the defendant’s land, of such use and enjoyment, and threatened to sue him if the dam was not lowered, and he then refused to lower his dam, claiming the right to keep it at the height it then was; and that since such refusal the dam has been kept up to the same height, and the use and enjoyment of the water continued, with the knowledge and against the consent of the plaintiff, during the whole time which has subsequently elapsed,— then, such use and enjoyment must be regarded as adversary, and if exclusive for more than twenty years, is conclusive evidence of the defendant’s right to the use and enjoyment of the water to the extent aforesaid; which instruction the court refused to give; and the defendant excepted.
    After the verdict was rendered for the plaintiff as aforesaid, the defendant moved the court to grant him a new trial, on the ground that the verdict was contrary to evidence: which motion the court overruled, and the defendant excepted.
    Brom the judgment of the circuit court, the defendant prayed an appeal to this court, which -was allowed.
    ^Johnson, for the appellant,
    insisted that an adversary possession, in the cases of this nature, for 20 years, rendered it unnecessary for the possessor to prove his right; that such a possession was conclusive, unless it had been resisted; and that it must be resisted not bjr mere claim or complaint, but by suit. The intervening' complaint of Aylor, resisted, and not vindicated by suit, rather strengthened the possessor’s right, because it proved the adversary character of the possession, and the knowledge of its being adversary. He cited The Mayor of Hull v. Horner, Cowp. 108; Eldridge v. Knott &c., Id. 214; Holcroft v. Heel, 1 Bos. & Pul. 400; Campbell v. Wilson, 3 East 294; 2 Wins. Saund. 175a; Bealey v. Shaw, 6 East 208; Coalter v. Hunter, 4 Rand. 58.
    Robinson, for the appellee,
    contended that the flowing back of the water for 20 years was not conclusive evidence of right, but might be repelled by circumstances. In the case of The Mayor of Hull v. Horner, where the enjoyment was for 350 years, lord Mansfield takes the distinction between time as a bar, and time as evidence; treating the one as conclusive, the other not. The same distinction is again made in Eldridge v. Knott &c. where there were 37 3’ears after demand and refusal. Hol-croft v. Heel, as it is reported, was thought to go too far, as appears from Campbell v. Wilson. In Saunders the possession is treated as only presumptive, not conclusive. 2 Wms. Saund. 175b. Bealey v. Shaw shews that if the enjoyment be contested, the contest will detract from its weight. The presumptive character of the evidence is noticed in Coalter v. Hunter, 4 Rand. 65. In accordance with this is 3 Starkie on Ev. 1214, 1217, 1671. He cited also Eenwick v. Reed, 7 Eng. Com. Haw Rep. 79; Eivett v. Wilson, 3 Bingh. 115; 11 Eng. Com. Law Rep. 57, and Summer v. Tileston &c., 7 Pick. 198. There was no difficulty, he said, except that growing out of the opinion of lord Ellenborough in Bealey v. Shaw, 6 East 215-16. But that case may be explained. The ^possession meant is one not disputed, and the right to enjoy, a right not contested. The rule, at most, would only be like the rule of fraud per se. Possession of chattels in the grantor inconsistent with the conveyance is per se fraudulent. Enjoyment for 20 years without interruption and without contest is per se evidence of a right to enjoy. But in the one case the possession may be explained and shewn not to be inconsistent. And so in the other it may be shewn that the right to enjoy was not acquiesced in, but contested, and thus the idea of a grant from the party contesting be excluded. In this case, the proof rebuts any presumption of a grant from Aylor to Donaghe.
    Johnson, in reply,
    said, he supposed that in such caes the proof from time might be rebutted; but the question was, by what sort of evidence? If the presumptive proof be unanswered, it is conclusive. Here, he insisted, it was not answered. The record in Donaghe’s case cannot, he admitted, protect those claiming under him, beyond the log; but if the record cannot aid, neither can it injure. And throwing this record out of the case, it rested upon the complaints of Aylor. What the plaintiff himself said of his former complaints, unless assented to by the defendant, was no proof, and complaint made after 20 years possession had given right, could not affect that right. It would seem strange if a mere claim of title, even within the 20 years, without any act in vindication of it, should be of weight; for the defendant being in possession could not sue, and was-compelled to wait for the plaintiff to sue, to try the right. It was said, there must be acquiescence. But does not he acquiesce in my right, who, knowing that I hold claiming right, brings no action, and does no act to interrupt my possession?
    
      
      Note by the president. I am not certain as to dates. But the rise to 150 dollars, and the succeeding rapid fall to par about the close of Mr. Jones’s presidency, is matter of history.
    
    
      
      Adverse Possession. — The principal case is cited in Field v. Brown, 24 Gratt. 86, 93, 94, 96. See mono-graphic note on “Adversary Possessions” appended to Nowlin v. Reynolds, 25 Gratt. 137.
    
   CARR, J.

This case turns upon several opinions of the court below. The first and second instructions *asked. of the court, I consider as essentially the same; to wit, to instruct the jury, that if it was proved to their satisfaction that the defendant, and those under whom he claimed, had been for more than 20 j'ears in the exclusive and adversary possession and exercise of the right of raising the water in Naked creek to the height at which it stood when the grievance complained of was inflicted, such exclusive and adversary enjoyment and use must be taken by them as conclusive evidence of the right of the defendant to raise the water to that height. The court refused to give this instruction, and I think, very properly. The difference between time as a bar, and time used as evidence, is very clearly shewn by lord Mansfield, in The Mayor of Hull v. Horner, Cowp. 108, and Eldridge v. Knott &c., Id. 214. In the first he says — ‘ ‘There is a great difference between length of time which operates as a bar to a claim, and that which is only used by way of evidence. A jury is concluded by length of time that operates as a bar: as where the statute of limitations is pleaded in bar of a debt; though the jury is satisfied that the debt is due and unpaid, it is still a bar. But length of time used merely by way of evidence, may be left to the consideration of the jury, to be credited or not, and to draw their inference one way or the other according to the circumstances.” In Coalter v. Hunter, 4 Rand. 58, the question was about a water right, and Hunter relied on the exclusive and uninterrupted use for more than twenty years; but though this was proved, it did not prevent the court from inquiring into the origin of the claim. They said, “It is of the vety nature of presumptive proof, that it yields to that which is positive.” They examined the evidence, and finding it to establish the fact that Hunter first acquired and afterwards held the use of the water by permission merely, they ask, “When a loan is positively proved, how can we presume a grant?” Looking at the english cases since lord Mansfield’s time, we “'find some seeming contrariety; but in the main, I think they clearly establish the same doctrine. In Holcroft v. Heel, 1 Bos. & Pul. 400, it would seem from the case as reported, that Eyre, C. J., decided the undisturbed possession of a market by the defendant for 23 years to be a clear bar to the plaintiff’s right of action. But from an explanation given of this case four years after in Campbell v. Wilson, 3 East 294, by Le Blanc, J., who had been of counsel in the cause, the facts appeared to be that the court did disapprove of the opinion .given at nisi prius, that the time was a clear bar, and would have sent the case back; but they would have sent it with an intimation of their opinion, that if it went to trial on the same facts, it should be left to the jury to find for the defendants, upon the ground of the presumption, of a grant ■after 20 years uninterrupted user of the market: and the plaintiffs counsel said, that if it were to be left to the jury in that manner, with the recommendation of the court in favour of such presumption, it would answer no purpose to go to trial again. And in this case of Campbell v. Wilson, lord Ellenborough says — '“It might indeed be too much to say, in the case of Holcroft v. Heel, that the adverse user of the neighbouring market for 20 years was a bar to the action by the grantee of the crown. In strictness it was not.” And Grose, J., says, “As to the question of law, T agree with the case of Holcroft v. Heel as it has been explained by my brother Le Blanc, but no further.” The case of Campbell v. Wilson clearly overrules that of Holcroft v. Heel, taken as reported. There, a right of way was in contest, and an adverse exercise of that easement for more than 20 years, under a claim of right, was proved. The judge at nisi prius instructed the jury that if they were satisfied that the enjoyment was adverse, and had continued 20 years and upwards before the action, it was a sufficient ground for their presuming the grant pleaded by the defendant: but that if they were satisfied ffom the “'whole evidence, that the enjoyment had been only by leave and favour, or otherwise than under a claim or assertion •of right, it would repel the presumption of a grant. It is clear that the judges thought this instruction a little too broadly given; yet as the evidence did not in their opinion take away the ground of presumption, they thought it best not to send the cause back. Thus lord Ellenborough says (after stating the facts), “There was therefore no reason why the jury should not make the presumption, as in other cases, that the defendant acted by right; and that was in substance the direction of the learned judge.” Grose says, 1 ‘It appears that the judge left the question to the jury upon the evidence, whether the enjoyment originated under a grant, or in any other manner? and therefore I cannot say that upon this evidence the jury might not make the presumption which they have done; though had I been one of them, I do not know that I should have dared to do so.” Lawrence, .1., says, “No doubt but that adverse enjoyment of the right of way for 20 years, unexplained, is evidence sufficient for the jury to found a presumption that it was legal enjoyment; and such, in effect, was the opinion of the learned judge in his direction to them.” It is most clear, from all that is said in this case, that the court thought the 20 years possession no bar, but presumptive evidence only. I have stated this case the more fully, because of its bearing on the case of Bealey v. Shaw, 6 East 208. There the defendants had long possessed a mill, which was fed by water taken by a sluice from the river Irwell, leaving a considerable quantity still flowing in the channel of the river. In the year 1787 the plaintiff comes to a spot lower down the stream, and erects a weir, mill, and other works on his own land, and enjoys the rest of the water which the defendants had not been accustomed to divert. Four years after, the defendants so enlarged this sluice as to interfere materially with *the operation of the works below; for which the action was brought. It will be seen from this statement, that the question of 20 years possession could not arise here, and that every remark on that subject must be extrajudicial. Yet great reliance has been placed on an observation of lord Ellenborough. He says, “I take it, that 20 years exclusive enjoyment of the water, in any particular manner, affords a conclusive presumption of right in the partj' so enjoying it, derived from grant or act of parliament.” In the first place, this is an obiter dictum : in the second, though the word conclusive is rather oddly joined with the word presumption (it being of the very essence of presumptive evidence, that it must yield to stronger proof) yet we must understand lord Ellenborough to mean, by a conclusive presumption, a presumption which, unexplained or uncontradicted, will conclusively authorize a jury to find the fact. This construction is necessary to reconcile lord Ellenborough to the whole course of decision, — indeed to reconcile him with himself; for in the case last cited, of Campbell v. Wilson, decided only two years before this, lord Ellenborough and the whole court held that 20 years possession was simply presumptive evidence to be explained or rebutted like any other presumption. In Livett v. Wilson, 3 Bing. 115, 11 Eng. C. L. Rep. 57, upon a question of 20 years possession, Best, C. J., says, “I do not dispute that if there had been an uninterrupted usage for 20 years, the jury might be authorized to presume it originated in a deed; but even in such a case a judge would not be justified in telling a jury that they must, but that they may, presume a deed. If, however, there are circumstances inconsistent with the existence of a deed, the jury should be directed to consider them, avd decide accordingly.” And the rest of the court were of the same opinion. I think, then, the judge was correct in refusing to instruct the jury that the 20 years possession was conclusive evidence of “right. I think he was correct too in the instruction which he did give; that is, that the testimony in the case of Aylor’s complaints from time to time of the injury he received from the refluent water, and the evidence by which he attempted to shew that the present dam of the defendant is higher than the former, and that the injury complained of is of more recent date than the time of erecting the dam, &c. was proper to be considered by the jury as evidence to rebut the presumption. There are several cases in which Complaints and claims are said to be sufficient to shew that the possession was not acquiesced in, but was a contested possession: Bealey v. Shaw is one of them. In the case before us, I am of opinion that the ground for presuming a deed is much weakened by considerations which do not apply to most of the english cases. No man undertakes to build a mill with us, until he has obtained leave of the court of the county in which the mill is situated. In order to get leave, he must have a writ of ad quod damnum. There must be an inquest of a jury, fixing the height of his dam, reporting what land will be overflowed, and several other matters. Upon consideration of the whole of these matters, the court, if they think it proper, give leave to erect the dam and mill. All this is of record, and under this record evidence the party proceeds to build his dam &c. This was the case with Donaghe. The inquest did not ascertain the height of his dam, in any other way than bjr saying he should not throw the water further back than a sill near Aylor’s line. Can there be a rational doubt, that it was under this inquest and leave of the court he built his dam, and, by mistake probably, built it so high as to throw the water further back than the sill? If he had relied on any other authority (such as a grant from Aylo’r) would he not have alleged it when Aylor was threatening suit and complaining that his dam was too high? In the record purporting to contain *all the evidence, the defendant produces, as the foundation of his right to build his dam, tlie proceedings in the county court. When it is so obvious to refer the dam and its height to this proceeding, does it not weaken much the ground of presuming any other authority? I think so. And there is a case (Fenwick v. Reed, 5 Barn. & Ald. 228, 7 Eng. C. L. Rep. 79,) which seems to bear out the idea. There a creditor by judgment, in the year 1752, by agreement with his debtor, entered into possession of a tract of land belonging to the debtor, to hold till his debt should be paid. He, and those who claimed under him, held till 1801, when the family of the debtor filed a bill to have a settlement and a decree for the land; and in 1821 the vice chancellor directed this action of ejectment to be brought. The question was whether, after this holding of 49 years, a deed ought not to be presumed? The judge at nisi prius told the jury that the real question for them to consider was, whether they believed that a conveyance had actually taken place; observing, that the loss of a deed of conveyance was less likely to take place, than of a grant of a right of way. A new trial was moved for on the ground of misdirection. Abbott, C. J., said, “I am clearly of opinion that the direction was according to law. In cases where the original possession cannot be accounted for, and would be unlawful unless there had been a grant, the rule may perhaps be different; and all the cases cited are of that description. Here the original possession is accounted for, and is considered with the fact of there being no conveyance.” After some further remarks he concludes thus— “In my opinion, presumptions of grants and conveyances have already gone to too great a length, and I am not disposed to extend them further.” Holroyd, J., remarked — “The true question was presented to the jury. In cases of rights of way &c. the original enjoyment cannot be accounted for, unless a grant has been made; and therefore *it is, that from long enjoyment such grants are presumed. But even in these cases, evidence to rebut such a presumption would be admissible.” I think this case illustrates strongly the difference between our mill cases, and the english cases of water rights, rights of way, &c. Upon the motion for a new trial I shall only say, that I think the court was right in refusing it.

I am for affirming the judgment, in omnibus.

BROCKENBROUGH,

J. I concur in affirming the judgment.

BROOKE, J.

I think the instructions to the jury asked for by the counsel for the defendant were correctly refused b3r the judge, and that the instruction' given by the judge was proper on the case made by the bill of exceptions. What was said by lord Mansfield in the case of The Mayor of Hull v. Horner, Cowp. 108, that though the jury did not believe there was a grant, yet public utility required, for the quieting of rights, that they should presume a grant under the circumstances of that case, did not forbid the introduction of opposing evidence to prove that the presumption was unfounded; and though there is a want of precision in the reporters or the judges, in the language used, there can now be no doubt such evidence may be introduced. In Livett v. Wilson, 3 Bing. 115, 11 Eng. C. L. Rep. 57, much is said by all the judges to that effect, which I will not repeat here. But this presumption of a grant after 20 years exclusive and adversary possession and enjoyment of the way or water, can only apply to cases in which the possession can in no other way be accounted for, than by a grant from the plaintiff or those under whom he claims. Where that is not the case, the presumption must fail, as in the case before us. The use of the water is clearly accounted for. The establishment *of mills is a matter publici juris, and without the judgment of a court the defendant was not authorized to raise his dam so as to injure the plaintiff or any other person, nor could they grant him that right. To presume the grant of a thing which could not be granted by any individual, would carry the doctrine greatly beyond the reason of it; and in none of the cases has the presumption been relied on when the possession could be accounted for otherwise than by grant. I think the judgment must be affirmed.

TUCKER, P.

I am of opinion that the instruction first asked for was properly refused. Whatever difficulty there may be in reconciling the various authorities, they all concur in making acquiescence or uninterrupted possession the foundation of the presumption. But here the defendant asks that the right should be presumed from exclusive and adversary possession alone, without making the freedom from interruption a term in his proposition. Again, not withstanding some weighty opinions to the contrary, the preponderance of authority is clearly against the conclusiveness of the presumption. The court, therefore, ought not to have instructed the jury that it was conclusive, and the instruction which was given was altogether correct.

The last instruction asked for is still more objectionable, for it not only requires that the presumption should be conclusive, but that it should be raised from mere continued adversary possession, not only without acquiescence, but with the knowledge and against the consent of Aylor. Now, the presumption of right or of a grant arises from the long acquiescence of the party, and does not arise where the enjoyment is contested. Bealey v. Shaw, 6 East 216. It would be strange indeed if a grant was to be presumed to have been made by him, though he was continually contesting the right; and accordingly in the case of Livett v. Wilson, 3 Bing. *115, 11 Eng. C. L. Rep. 57, it is distinctly made an answer to the presumption, that the user “had been almost always the subject of contest.” It is also observable in that case, that no action had ever been brought asserting the rights of the party, and that his repeated complaints and denial of the title of his adversary were considered as sufficiently rebutting the presumption of a grant. I am therefore of opinion that this instruction was properly refused.

The motion for a new trial was also properly refused. If the evidence was not conclusive of the right, it was the province of the jury to decide upon its weight, and I see no reason for disturbing their decision.

I am of opinion to affirm the judgment.

Judgment affirmed.  