Rerick v. Kern
Supreme Court of Pennsylvania
IN ERROR. On the return of a writ of error from the Common Pleas of Union county, it appeared from the record, that this was a special, action on the case, brought by Henry Kern, the defendant in error, against Henry Rerick, the plaintiff in error, for diverting a water-course, in consequence of which he lost the use of his saw mill. The defendant pleaded, not guilty.
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IN ERROR. On the return of a writ of error from the Common Pleas of Union county, it appeared from the record, that this was a special, action on the case, brought by Henry Kern, the defendant in error, against Henry Rerick, the plaintiff in error, for diverting a water-course, in consequence of which he lost the use of his saw mill. The defendant pleaded, not guilty. The material facts, proved on the trial, were, that some years before the institution of the suit, Henry Kern, the plaintiff below, being about to erect a saw mill on a stream which was designated by the witnesses as the right…
1Opinion of the Court
The opinion of the court was delivered by
Gibson, J.
To the objection, that' an action for diverting an ancient water-course, is not supported by evidence of the removal of an artificial obstruction, it is sufficient to answer, that in the case .before us, the right depends, not on the antiquity of the watercourse, but on the agreement of the parties; and the question therefore is, would equity carry this agreement into effect?
That such an agreement may be proved by parol, was settled in Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241, which, in this respect, g09s as far as the ease before us. The…
2Cases cited1 opinion
- Le Fevre v. Le FevreSupreme Court of Pennsylvania · 1818
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- Grant v. City of DavenportSupreme Court of Iowa · 1865
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