
    Benson versus Soule & al.
    
    In a complaint By one for flowing land claimed to Be Bis, if the defendant does not controvert the title, it is to Be considered in the complainant.
    Though a dam may Bave flowed land more than twenty years, a prescriptive right, set up by the defendant, is not estaBlisBed, unless the occupation was by himself or some person under whom Be claims.
    Complaint for flowing plaintiff’s land by means of a mill-dam. The defence set up was, that defendants, by user, had obtained the right to flow. It appeared that the dam had stood more than twenty-five years before the complaint was filed ; that it was as high in 1823 as at any later period, but by tightening it, the flowage had been greater.
    The defendants showed title to the dam and mills derived from Thatcher in 1836. They also introduced two mortgage deeds from Williamson to some third persons, executed in 1823, and proved that Williamson, being in possession of the land flowed, assisted in erecting the dam. The complainant introduced assignments to third persons, of those mortgages and of the notes secured by them.
    The court, Tenney, J. directed a verdict for the complainant.
    The defendants excepted.
    
      Abbott, for the defendants.
    
      Currier, for complainant.
   Tenney, J.,

orally.—As the defendants have not controverted the title to the land flowed, it is to be considered in the complainant.

The right in the defendants to flow is not made out.

Though the flowing has continued for more than twenty-years, the defendants have shown no connection with it, beyond the year 1836, either by their occupation, or that of any person under whom they claim. Exceptions overruled.  