Burnett v. Whitesides

Terry, C. J. concurring.

This appeal is from an order dissolving an injunction. The injunction was granted to restrain the defendants from diverting the water of a certain stream from the plaintiff’s ditch, the plaintiff claiming a prior appropriation and averring irreparable injury. The answer denies the equity of the bill, averring that the ditch of defendant only diverted the water not appropriated by the plaintiff. The fact further appears that the ditch of defendants has been constructed for several years within the knowledge of the plaintiff. The motion was heard on complaint and answer.…