Nevius v. Smith

Mr. Chief Justice

Denison delivered the opinion of the court.

Smith, plaintiff below, secured an injunction against plaintiffs in error, defendants below, restraining them from interfering with his use of five second feet of water which he claimed to have appropriated. Their claim is that the appropriation is from mere seepage which arises on their land and therefore is not subject to appropriation by others. The plaintiff on the other, hand claims that the waters which he appropriated were of' a stream flowing through defendant’s lands, not mere seepage but what he denominates a “seepage…