Kintz v. McNeal
Court for the Trial of Impeachments and Correction of Errors
Writ of nuisance. The plaintiff declared that he was seized of certain lands in Lancaster, Erie county, describing them, through, which ran the waters of the Cayuga creek, and that the defendants, on &c. wrongfully and unjustly built, raised and put up in and across the creek on and against and near the plaintiff’s land divers, to wit, three dams, three flumes, and three obstructions of great height and width, to wit, of the height of five feet and of the width of four rods…
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Writ of nuisance. The plaintiff declared that he was seized of certain lands in Lancaster, Erie county, describing them, through, which ran the waters of the Cayuga creek, and that the defendants, on &c. wrongfully and unjustly built, raised and put up in and across the creek on and against and near the plaintiff’s land divers, to wit, three dams, three flumes, and three obstructions of great height and width, to wit, of the height of five feet and of the width of four rods ; and cut, dug and made divers, to wit, three sluices, three trenches, and three cuts of great depth and width, &c.';…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The second count was for enlarging the dam, and seems well enough adapted to the case which the plaintiff made on the trial. And although there was a variance between the proof and- the first count, the judge was right in refusing to nonsuit the plaintiff. The judge was also right in refusing to charge the jury as the defendants requested. There was evidence from which the jury might find, that what were called the flush boards were on the dam at the time the action was commenced.
As to the former suit, the offer does not go far enough to show what particular…
2Cases cited1 opinion
- Barnet v. IhrieSupreme Court of Pennsylvania · 1828
3Cited by7 opinions
- Fernandes v. Sacramento City Ry.California Supreme Court · 1877
- Sonnesyn v. AkinNorth Dakota Supreme Court · 1905
- Brown v. WoodworthNew York Supreme Court · 1849
- Ellsworth v. PutnamNew York Supreme Court · 1852
- Kiel v. ReayCalifornia Supreme Court · 1875
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