#### BOSTON GERENGER vs. LUDWICK W. SUMMERS.

The ground on which is presumed a grant of the privilege of ponding water on another’s land for the purpose of a mill is, that it has been enjoyed by the person claiming and those with whom he connects himself for twenty years or more in the state or to the extent to which he claims.

It is no answer to this presumption that the height of the water had been sometimes lowered by a drought, or that the water had been occasionally let off for the purpose of repairing the mill, and oaly for the period required for such purpose.

The cases of *VI ilson*v *Wilson,*4 Dev, 154, and *Pugh*v *Wheeler,*3 Dev. & Bat. 50, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Guilford county, at Spring Term, 1842, his Honor Judge Dick presiding: The plaintiff filed his petition to recover damages from the defendant, for flooding the plaintiff's land, and obstructing his mill and wheels by the erection of a dam across a stream on the defendant’s own land. The plaintiff proved that he erected a grist and saw mill on the Reedy-Fork of Haw River in the year 1826, and that he had been in the use and occupation of the same ever since — that the defendant, who is the owner of a mill on the same stream, below the plaintiff’s will, in the year 1839 built a new dam across the stream, about thirty-five feet above the defendant’s former dam — that, since the erection of the new dam by the defendant, the water was raised to the gudgeons of his saw mill wheel, and that the water stood about six inches on the floor on which his grist mill wheels rested, his grist mill being of the construction called a tub mill. The plaintiff alleged that the water was thus raised on his mill wheels by the new dam of the defendant, and that he was thereby greatly injured. The defendant proved that a mill-dam had been erected before the revolutionary *230war, and was then known as Whitsett’s mill, and had been ^ePt nP ever s^nce — that ak°ut the year 1796, his father, Peter Summers, purchased said mill, and in the year 1812 rebuilt the dam, and raised it about one foot higher than it had been before. — that for several years before 1839 the dam had become very much dilapidated and leaked very much, so much so that the dam was rarely full of water unless in the time of a swell in the stream — that in the summer of 1839 he erected his new dam thirty-five feet above his old dam — that the new dam was made tight. The defendant alleged that the new dam was not as high as the old dam, and that he had not raised the water higher (if as high) than it was raised by 'the old dam — that he and his father, under whom he claimed, had been in uninterrupted possession from the year 1812, until the plaintiff filed this petition — . that, having been in the uninterrupted possession more than twenty years, the law presumed a grant of an easement or privilege of ponding the water on the plaintiff’s land. The defendant further alleged that the injury done to the plaintiff’s mill wheels arose from the sinking of the foundation, on which the plaintiff’s mills were erected, and not from raising the water higher than it was before the new dam was erected. Upon the comparative height of the old and the new dam of the defendant, much evidence was offered by both parties, both as to observations made from levelling, and from water marks on the margin of the defendant’s pond, and along the stream from one mill to the other. The defendant also offered evidence to prove that the foundation, on which the plaintiff’s dam and mills rested, was not good, and was liable to be washed out in freshets. The plaintiff’s counsel contended that the presumption of the grant of an easement did not arise in this case, for the erection of the plaintiff’s mill in 1826 rebutted such presumption.

The judge left it to -the jury to determine from all the evidence on both sides, whether the new dam was higher than the old danvof 18)12, and whether by it the water had been thrown back on the plaintiff’s land and mill wheels — that if they should so find, the plaintiff would be entitled to recover damages. The judge further instructed the jury that if *231they should find the fact to be, that the defendant and those under whom he claimed had thrown back the water as high ° by the old dam as .it was thrown back by the new dam for more than twenty years before the filing of the petition in this case, although the land and mill-wheels might be affected thereby, yet the plaintiff could not recover, because the law raised the presumption of a grant of an easement or li-cence in favor of the defendant, which presumption, however, might be rebutted by evidence — that to entitle the defendant to this presumption of law, the jury must be satisfied that the water had been kepi up for more than twenty years before filing the petition to its present height — that any temporary lowering of the water, however, such as drought, sudden breaches in the dam by freshets, or drawing off the water with the view of erecting a new dam, if the same was repaired or erected immediately thereupon, would not rebut the presumption of a grant in the defendant’s favor. The judge further instructed the jury that the fact of the plaintiff having erected his mills in 1826 on the same stream above the defendant, without any complaint of injury or notice to the defendant, until more than twenty years had expired from the erection of the defendant’s dam in 1812, was not sufficient to rebut the presumption of a grant or licence, provided they found that the defendant had kept, up the water to the present height for more than twenty years before the filing of this petition. Thejury found for the defendant. A new trial was moved for and refused, and judgment being rendered for the defendant, the plaintiff appealed.

No counsel appeared for the plaintiff in this court.

*J T. Morehead*for the defendant.

Ruffin, C. J.

We do not perceive any thing in the record, which can be regarded as an error in matter of law, on which this court can reverse the judgment. The evidence,, as stated on the part of the defendant, of the height at which the water had been kept up from the building of the dam by his father in 1812, was rather vague, and, perhaps, ought not to have been satisfactory. The ground on which a pre*232sumption rests of a grant of the easement, as claimed by the defendant) *s> ^ ^een enJ°yed by him and those with whom he connects himself, for twenty years or more, in the state and to the extent in which he is now using it, as complained of by the other party. Now, from 1812 to 1839 is inore than twenty years, it is true. But the case states, that “ for several years before 1839” the dam of 1812 had become so defective, that it would not hold water well, and, as we must understand, did not usually raise the pond as high as it was while the dam remained in repair, or, perhaps, high enough to injure the plaintiff’s mills. If such was the state of facts in 1832, or earlier, that is to say, before the expiration of the twenty years from the covering of the plaintiff’s land by reason of the dam in 1812, then there would not have been the requisite time and enjoyment to raise the presumption urged on the part of the defendant; and it may be, that he should have offered clearer proof, that the “several years” mentioned began after the completion of the full term of twenty years from 1812. But that was a topic for discussion before the jury, or a ground for setting aside the verdict by the court, who tried the cause, for the want of sufficient evidence. It is not a matter on which this court can act, since, notwithstanding the inconclusiveness of the proof, it may be, that the period ot twenty years elapsed before the pond became ordinarily lower in consequence of tire insufficiency of the dam, and we must now take it that the jury have found that, in fact, that period did elapse. For his Honor explicitly directed the jury, that, on the one hand, to entitle the defendant to the benefit of the presumption of a grant, “ they must be satisfied that the water had been kept up for more than twenty years to its present height;” and, on the other, that “if the new dam (of 1839) was higher than the old one of 1812, and thereby the water was thrown on the plaintiff’s land and mills, they should give him damages.” It is, hence, a necessary inference from a verdict for the defendant, that the jury was of opinion, that the defendant did not raise the pond higher on the plaintiff’s land than his father did, and that, before suit brought, the pond had been kept at that height for twenty years or more. In that *233case it is settled by repeated declarations of this court, that a grant is to be presumed. *Wilson*v *Wilson,*4 Dev. 154. *Pugh*v *Wheeler,*2 Dev. & Bat. 50.

The court likewise agrees with his Honor with respect to those matters, on which the plaintiff relied as rebutting that presumption. The lowering of the water by drought could not have that effect; else the presumption could never arise, but *would be*defeated by the course of nature. Nor will letting off the water for the purpose of repairs, and only for the period required for repairs; for that is only for the better enjoyment of the franchise, and not a surrender of it. Still less does tlie erection of the plaintiff’s mill in 1826 repel the presumption: it rather strengthens it as an inference of fact. For, if the defendant did not throw back the water ou the plaintiff’s land under a grant, why should-the plaintiff, after building his own mill, whereby his damages became increased, allow the other party to continue the nuisance in the same state, undisturbed, until August, 1841, when this suit was brought? Upon the whole, then, the judgment must be affirmed.

Per Curiam, Judgment affirmed.