
    Postlethwaite and Others v. Payne.
    Suit for injury to'plaintiff’s land and mill, by means of water backed upon them by a dam maintained by defendants. Defendants, in one paragraph of their answer, averred that they had a right to maintain the dam because it was erected in the year 1826, to propel a mill, and had been continuously used by them and other persons under whom they claim, without molestation or hindrance, from 1826 till the commencement of this suit, at which 'time they had peaceable possession, and were using the dam to propel a mill, as they lawfully might. Held, that the paragraph was bad on demurrer because it did not aver that the possession or user was of right, or under claim of title.
    The Court instructed the jury in this case, that “the continuance of an unauthorized dam or obstruction in a stream or watercourse, even for a great length of time, of itself confers no right upon the parties to further maintain the same to the injury of any.other person interested in the use of the stream. Held, that the instruction was correct, but too narrow: the Court might have added that possession or user, under claim of right, does confer title, when continued for twenty years; and that the jury might infer possession under such claim, from simply twenty years unexplained possession.
    Evidence'of a suit brought within twenty years against the occupants of á mill dam, but compromised, is admissible to rebut the presumption of an easement by prescription.
    Where a dam had been in existence more than twenty years, but had been raised a foot higher within twenty years, the occupant, in defense to an action against him for backing up the water to the injury of property above, claimed a prescriptive easemenf. Held, that to establish the prescription, the easement must have been enjoyed for twenty years, to the extent claimed at the trial.
    APPEAL from the Dubois Circuit Court.
   Perkins, J.

. Jrayne sued Jrosuemwaite and others, tor injury which, had occurred to his land and mill by means of water backed upon them by a dam maintained by said Postlethwaite et al., across Patolia river. The defendants, in their answer, denied the complaint; alleged a license from Payne; and averred, “ That the defendants have a clear right to maintain said dam, because they say that it was erected in the year 1826 by Chapman and Miller, to propel a grist and saw mill, which has been continuously maintained and used by them, and by other persons, including the defendants, without molestation or hindrance, who claim and have possession of the same through and under the said Chapman and Miller, from the year 1826 until the commencement of this suit, and at that time they had peaceable possession, and were using the said dam to propel a saw-mill, as they lawfully might.”

A demurrer was sustained to this paragraph of the answer. There was a trial of issues by a jury. Verdict and judgment for the plaintiff.

The Court instructed that “ The continuance of an unauthorized dam or obstruction in a stream or watercourse, even for a great length of time, of itself, confers no right upon the parties to further maintain the same, to the injury of any other person interested in the use of the stream.”

On the trial, the plaintiff gave in evidence a suit that had been brought by him against occupants of the mill dam within twenty years, but which was dismissed upon a compromise. The defendant excepted.

It was also proved that the dam complained of — originally built more than twenty years prior to this suit— had been raised a foot in height within twenty years.

Some little confusion would seem, perhaps, to. have existed below, from confounding questions upon the rights of neighboring riparian proprietors to appropriate to use the flow of water through or adjoining their lands, by means of dams, &c.; and the power of one to acquire, by user, the- right of an easement of flowage upon the lands of another; which latter is the question arising in this case, and the language used must be understood accordingly.

Title to real estate may, by virtue of the statute of limitations, in effect, be obtained by possession. And title to easements, which are susceptible of but a quasi possession, may, in effect, be acquired by enjoyment. Because from proof of the one, in the one case, and the other, in the other, a grant may be inferred.

But the possession or enjoyment, to have such effect, must be:

1. Under claim of right.
2. It must be uninterrupted — undisputed.
8. It must be for twenty successive years.

Perhaps there may be other qualities, as, with the knowledge, actual or presumed, of the person against whom such a title is set up; but the three we have above stated are sufficient for the purposes of this case, so far as relates to the general doctrine o'f adverse possession. There is, in relation to -easements, a point which must be mentioned:

4. That, at least, as the general rule, they must have been enjoyed in the same degree — to the same extent— as claimed in the suit involving them.

Applying these principles to the case before us, the questions arising in it are easily solved.

The paragraph in the answer setting up title by prescription, by twenty years possession, or user, was bad because it did not aver that that possession or user, was as of right, or, under claim of title. If the user was by leave and license, — by authority of the then owner, — or if it was without authority, but still not by pretense or claim of right on the part of the person or persons enjoying it, it would not confer title. It is true that, as a question of evidence, a jury may infer from the simple proof of twenty years possession or user, that such possession or user was under claim of right; but in pleading, the averment must [be made. Holford v. Hankinson, 5 Ad. and Ellis, N. S. 584.

The instruction given to the jury and excepted to cannot be held erroneous; because the mere possession itself, for twenty years, does not confer title. It must be, as we have seen, possession or user, with claim of right, to have such effect. At the same time, as has been intimated, the jury may and would infer, from twenty years possession or user, especially if it was hostile in its commencement, or if it had been commenced by leave which was followed by a disclaimer, on the part of the person enjoying, of right in him by whose leave the enjoyment commenced, and had then been continued under such disclaimer, or if it. had been commenced under an invalid instrument purporting to convey title; if, we say,'the possession or user had been commenced in any of these modes, more especially, would the jury infer it to' have been under claim of right, though they might make such inference from mere uu explained continuance of possession, for twenty years. Law v. Smith, 4 Ind. R. 56. — Gale and Whateley on Easements, p. 87.

The instruction was true as far as it went; hut it covered too little ground. The Court told the jury that mere possession did not, of itself, confer title, which was true; hut the Court might have - told them farther, that possession or usei’, under claim of light, did confer title, when continued for twenty years, and that they might infer possession under such claim from simply twenty years unexplained possession. If the counsel or party wished to have this addition go to the jury he should have asked it.

The evidence of a suit by Payne against occupants of the mill-dam was correctly admitted.

The easement, the existence of which was in question in this suit, was the right to back water upon the land and mill owned by Payne. That easement was sought to be established by evidence of user. Such user must have been peaceable, and with the acquiescence of Payne. A suit by Payne against those exercising it might show that it. had not been. The suit was not voluntai'ily abandoned. Had it been, perhaps it would have availed nothing as evidence. 4 Ind. R. 431.. It was dismissed upon a compromise, the terms of which do not appear. Perhaps that compromise embraced a stipulation for the abatement of the dam — an acknowledgment of its wrongful existence.

The evidence, uncontradicted, that the dam had been elevated a foot within twenty years, showed conclusively that the easement had not been enjoyed, to the extent claimed at the trial, for twenty years.

“A gi’ant is presumed from twenty years unintei’rupted use of. water at a certain height. But if for twenty years the defendants have raised their water but five feet, and aftex-wai-ds they l-aise it six feet by the same dam, and the additional foot injures the plaintiffs, they are entitled to recover damages. Stiles v. Hooker, 7 Cowen, 266. Twenty years having expired since the erection of a dam, a grant will be presumed of a light •to continue the dam to the height of the original dam, and to raise the water as high as it stood for twenty-years. Baldwin v. Calkins, 10 Wend. 167.” G. and W. on Easements, p. 74.

A. L. Robinson, for the appellant.

Per Curiam.

The judgment is affirmed with 5 per cent, damages and costs.  