Hart v. Vose
New York Supreme Court
Error from the Tioga common pleas. Hart sued Vose, in an action on the case for overflowing his lands with water by means of a mill dam. One Thompson, the grantor of the defendant, and a witness for him, testified that the first dam was built by him more than twenty years before suit brought.
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Error from the Tioga common pleas. Hart sued Vose, in an action on the case for overflowing his lands with water by means of a mill dam. One Thompson, the grantor of the defendant, and a witness for him, testified that the first dam was built by him more than twenty years before suit brought. On his cross-examination the plaintiff’s counsel offered to prove by Thompson that at the time when he built his first dam he had not obtained any right to flow the land from the then owner of the premises now belonging to the plaintiff; had not obtained such right since, and had never claimed a right to…
1Opinion of the Court
By the Court,
Cowen, J.
The court below erred. The enjoyment and exercise of this and the like easements must be adverse, in the exact sense that the possession of land must be so to warrant the application of the statute of limitations in ejectment. This we held in Colvin v. Burnett, 17 Wend. 564.
The simple proof of an exclusive and uninterrupted enjoyment is prima facie evidence of its being adverse; but it may be under no claim of right, but by mere courtesy or on temporary permission, or even under a demise from the plaintiff. The proposed proof tended to rebut the inference of an adverse…
2Cases cited1 opinion
- Colvin v. BurnetNew York Supreme Court · 1837
3Cited by3 opinions
- Northrop v. WrightNew York Supreme Court · 1840
- Fleet v. DorlandNew York Supreme Court · 1854
- In re State Reservation at NiagaraNew York Supreme Court · 1884