Wilbur v. Brown
New York Supreme Court
Error to the Otsego C. P. L. Brown, in 1841, sued Wilbur in the court below, in a special action on the case for unlawfully-interfering with and depriving him of his right to the use of certain water to which he was entitled, to propel a saw mill and oil mill owned by him.' The second count in the declaration set forth that the plaintiff was possessed of the saw mill and oil mill, situated near to a certain stream or water course there, and also to so much of the water of…
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Error to the Otsego C. P. L. Brown, in 1841, sued Wilbur in the court below, in a special action on the case for unlawfully-interfering with and depriving him of his right to the use of certain water to which he was entitled, to propel a saw mill and oil mill owned by him.' The second count in the declaration set forth that the plaintiff was possessed of the saw mill and oil mill, situated near to a certain stream or water course there, and also to so much of the water of said stream and of the dam thereof, “as might or could or should rise above the bottom of the sill of said dam,” and…
1Opinion of the Court
By the Court, Jewett, J.
Was there a material variance between the declaration and the evidence, on account of which the court below should have nonsuited the plaintiff on the trial ? In the second count, which conforms more nearly to the evidence than the others, the plaintiff claims a right to so much of the waters of the stream and.of the dam as might rise above the bottom of the sill of said dam.
By the manifest construction of the partition deed the plaintiff acquired the right or property in the surplus of the waters of the stream which should from time to time rise above the bottom of…
2Cases cited3 opinions
- Wright v. ButlerCourt for the Trial of Impeachments and Correction of Errors · 1830
- Kilheffer v. HerrSupreme Court of Pennsylvania · 1828
- Biglow v. BattleMassachusetts Supreme Judicial Court · 1818
3Cited by6 opinions
- Nye v. . HoyleNew York Court of Appeals · 1890
- Beckwith v. GriswoldNew York Supreme Court · 1859
- Keeler v. ClarkNew York Supreme Court · 1864
- Bolton v. Manistee & Grand Rapids RailroadMichigan Supreme Court · 1893
- Wier v. CovellSupreme Court of Connecticut · 1860
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