Whitehair v. Brown

The opinion of £he court was delivered by

Mason, J.:

In 1874 a dam was erected across the Smoky Hill river, upon land which was purchased by Jacob Brown in 1894. The dam was then partly washed out, but he rebuilt it and maintained it until 1904, when a part of it was again washed away. As he was preparing to rebuild it John Whitehair and other upper riparian landowners sought to enjoin him from doing so. Having been denied relief, they prosecute error.

The defendant claimed that the dam had been maintained continuously (except for the intervals due to the washouts) from the time of its…