Hammond v. Zehner
New York Supreme Court
PPEAL by the plaintiff, from an order made at a special term, denying a motion for a new trial. The complaint alleged that before and at the time of the commencement of the action, the plaintiff was the owner and in possession of certain lands in the towns of Sparta and West Sparta, in the county of Livingston, and which were described in the complaint; that the defendant erected a dam across the Canaseraga creek, below the lands of the plaintiff, and continued the same for…
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PPEAL by the plaintiff, from an order made at a special term, denying a motion for a new trial. The complaint alleged that before and at the time of the commencement of the action, the plaintiff was the owner and in possession of certain lands in the towns of Sparta and West Sparta, in the county of Livingston, and which were described in the complaint; that the defendant erected a dam across the Canaseraga creek, below the lands of the plaintiff, and continued the same for the space of seventeen years before the commencement of the action, by means of which the waters of the creek were…
1Opinion of the Court
By the Court, E. Darwin Smith, J.
The defendant claims an easement in the plaintiff’s land. He claims a right to flow such lands for the use of his mill, which is supplied with water by means of a dam which the defendant and his grantors had kept up and maintained at its present height for about 25 years before the commencement of this suit. An easement is corporeal right, which may be acquired by grant os cence and use, upon the presumption of a grants common law is termed title by prescription. % always presupposes a grant made beyond the memory, and lost, the acquiescence and use requl or…
2Cases cited3 opinions
- Gayetty v. BethuneMassachusetts Supreme Judicial Court · 1817
- Colvin v. BurnetNew York Supreme Court · 1837
- Miller v. GarlockNew York Supreme Court · 1850
3Cited by8 opinions
- Cox v. ForrestCourt of Appeals of Maryland · 1883
- Mitchell v. BainIndiana Supreme Court · 1895
- Yankee Jim's Union Water Co. v. CraryCalifornia Supreme Court · 1864
- Zimmerman v. SummersCourt of Special Appeals of Maryland · 1975
- Wilkins v. NicolaiWisconsin Supreme Court · 1898
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