
    GENERAL COURT,
    MAY TERM, 1796.
    Daniel and Samuel Hughes against Jacob Mung.
    THIS was an action on the case for diverting an ancient water-course.
    By the bill of exceptions taken at the trial it appears, the plaintiffs made title to the land in the declaration mentioned, called Penny Pack Pond, under a patent granted to Peter Rench in March, 1753, and by him conveyed by deed of bargain and sale, duly executed and recorded, bearing date on the 13th November, IT81. And to support their action the plaintiffs offered evidence to prove that the water, for the diversion of which this action is brought, formerly run through the land above mentioned. That about 27 or 28 years ago, George Nicholas Mung, the father of the defendant, di= verted the said stream of water from its ancient course, as located by the plaintiffs upon the plats returned in the cause, and turned it into the course in which it now runs, as located upon the said plats.
    The plaintiffs also offered evidence to prove that the said stream of water has, ever since the said diversion by George Nicholas Mung, run where it now runs as located on the plats returned, and still runs there; that the land through which the said stream mow runs, is held and claimed by the defendant, Jacob Mung, and has been so held and claimed by him ever since the 1st of January, 1792. That the defendant ever since that time has continued, and still does continue, to use the said stream of water in the channel in which it now runs", by watering his stock therein, by enclosing it within his fences, and by throwing the water thereout occasionally upon his meadow. 1
    The defendant’s counsel prayed the opinion of - the court, that this evidence was not sufficient in law to enable the plaintiffs to sustain their.action.
    Mason, for the plaintiffs',
    cited 1 Com. Dig. 215. Esp. 637. to show that the action would lie against any person owning the property who continues the nuisance.
    
      Shaaff% for the defendant,
    cited Cro. Eliz. 402, 403. to show that the action does not lie against the assignee where the entire injury was done by the original proprietor.
   The Court

(Chase, J. and Duvaix, J.)

were of opinion, and so directed the jury, that an action will lie for the diversion of the water-course against the person who diverted it, and against any person who keeps up the obstruction which changed the water-course ; but no adventitious accidental advantages, derived from the use of the water running in its present course, will amount to a continuance of the nuisance, without some act done by the defendant to keep up the obstructions occasioning the diverting of the course of the stream, and that the present action cannot be supported, without showing those acts were done since the title of the plaintiffs accrued to the lands called Penny Pack Pond.

.To this opinion the plaintiffs excepted, and appealed to the court of appeals.

The court of appeals, at June term, 1797, affirmed the judgment.  