
    ACQUIREMENT BY PRESCRIPTION OF RIGHT TO USE STREAM FOR SEWER PURPOSES.
    [Circuit Court of Hamilton County.]
    John Schrenk, Jr., v. The City of Cincinnati.
    Decided, June 22, 1907.
    
      Pollution of Stream, — Charge of Court with Reference Thereto — Acquirement by Municipality — To Use Stream, for Sewer Purposes— Error — Damages.
    A charge of court with, reference to the time required by a municipality to acquire by prescription the right to empty sewage into a natural stream is erroneous and prejudicial, if it is nowhere stated that the time required to create the right must be at least twenty-one years.
    
      
      M. G. Ileintz, for plaintiff in error.
    
      City Solictors, contra.
    Gesteen, J.; Swing, P. J., and Smith, J., concur.
   The court charged the jury as follows:

“If you find from the evidence that Bloody run, as it flowed through plaintiff’s property, has been polluted by the city of Cincinnati for long period of time, and that the stream and its deposits along its banks, and the smell, if any, arising from its waters are but different in slight degree from what they have been for many years as it flowed through plaintiff’s property, then the plaintiff can not recover. ’ ’

And again as follows:

“The burden of proof is on the defendant to show a prescriptive right to use the stream for sewer purposes and to show that the water as it flowed through plaintiff’s premises was substantially as it was in 1903 for a period of time more than four years prior to that date.”

The jury naturally would and no doubt did infer from these instructions that the city could acquire a prescriptive right to use the stream for sewer purposes by an uninterrupted use of the same in that manner for any period of time more than four years and less than twenty-one years. Although in another part of charge the court said that such right could be acquired in twenty-one years, it nowhere appears in the charge that the period of time required to create the right must be at least twenty-one years.

• The instructions given were erroneous and prejudicial, for which the judgment will be reversed and cause remanded for a new trial.  