#### Hart *vs.*Vose.

NEW-Y0RK,

May, 1838.

A right to flow the lands of another, founded upon an exclusive and uninterrupted enjoyment for 20 years, cannot be acquired, unless the enjoyment be adverse ; the uninterrupted possession prima facie is evidence that it is adverse, but such conclusion may be rebutted by proof that it was commenced and continued without claim of right.

The charge to a jury that the defendant was entitled to their verdict if they should find that he had been 'permitted to enjoy the easement for twenty years is the subject of exception, although the court were not requested by the plaintiff to instruct the jury that to justify such verdict, such enjoyment must have been adverse especially where it had been refused to the plaintiff to inquire as to the origin and character of the enjoyment.

Error from the Tioga common pleas. Hart sued Vose, in an action on the case for overflowing his lands with water by means of a mill dam. One Thompson, the grantor of the defendant, and a witness for him, testified that the first dam was built by him more than twenty years before suit brought. On his cross-examination the plaintiff’s counsel offered to prove by Thompson that at the time when he built his first dam he had not obtained *any right*to flow the land from the then owner of the premises now belonging to the plaintiff; had not obtained such right since, and *had never claimed a right*to flow the premises in question : which evidence was objected to by the defendant’s counsel and the objection sustained by the court. On his further cross-examination he testified that he did not claim the right to flow the land, but supposed he had the right to raise the water as he did, as he thought he did no damage. The court charged the jury that they should find a verdict for the plaintiff *unless*they believed from the evidence that the defendant, and those under whom he claimed *had been permitted*to possess and enjoy the exclusive use of the water at its present height, overflowing the plaintiff’s land with his mill pond for 20 years before the commencement of the suit, in which case such enjoyment was a good bar to the plaintiff’s claim. The jury found for the defendant. The plaintiff having excepted to the decisions and charge of the court sued out a writ of error. The cause was submitted on written arguments.

*366
      *T. Farrington,*for the plaintiff in error.

*S. Story J. J. Taylor,*for the defendant in error.

*By the Court,*

Cowen, J.

The court below erred. The enjoyment and exercise of this and the like easements must be *adverse,*in the exact sense that the possession of land must be so to warrant the application of the statute of limitations in ejectment. This we held in *Colvin*v. *Burnett,*17 Wend. 564.

The simple proof of an exclusive and uninterrupted enjoyment is *prima facie*evidence of its being adverse; but it may be under no claim of right, but by mere courtesy or on temporary permission, or even under a demise from the plaintiff. The proposed proof tended to rebut the inference of an adverse holding.

It is indeed true that on the plaintiff resuming the cross-examination, the witness answered that he did claim no right in any other way than that he thought he had a right, because he did no damage. This is claimed to have been a waiver of the exception, and indeed it does come near to all the plaintiff could probably have got by his proposed questions; *non constat*however, that he was allowed to propound them, as he had proposed. The answers might have been strengthened had the counsel been allowed to inquire into the *right itself,*in connection with the *claim of right.*When the court came to charge the jury, the question whether the holding was adverse, or intended as merely in subordination to the plaintiff’s rights, was not mentioned. It may be said that it was not fairly raised. But this may be for the very reason that the questions proposed were withheld. To make out a waiver, it should be clear, and not leave us in doubt, whether the party was not prejudiced. The cause should be tried on the principle that to protect himself, the defendant is bound to show an adverse enjoyment; a claim of right; no matter on what reason, whether as having a title, or under a belief that his right was a negative one, arising from a clear conviction that he could hurt nobody ; but it must be adverse; and the plaintiff ought not to be prevented from addressing all proper questions to *367the witness, especially on cross-examination, as those were which he proposed. •

The judgment is reversed, a venire de novo to *go*from the court below; the costs to abide the event.