#### Smith and others vs. Russ and others.

The fact that a dam has been maintained at a certain height for twenty years does not confer upon its owner a prescriptive right to 'maintain it at that height, and thereby flow lands which have not in fact been flowed for so long a period.

It was error for the court in such a case to instruct the jury that if the dam had been maintained at a uniform height and head for twenty years, and had not flowed the plaintiffs’ lands for the first ten years of that time, and afterwards said lands were overflowed, the presumption would be that the flowage had been produced by other causes than the dam, and the defendants would not be liable. '

Whether the subsequent flowage of the land, though not flowed during the first ten years, was caused by the maintenance of the dam, was a question of fact for the jury.

APPEAL from the Circuit Court for *Jefferson*County.

This was an action commenced in January, 1861, to recover damages for the flowing of the plaintiffs’ lands in consequence of the maintenance of a certain mill dam by the defendants between the 18th of June, 1857, and the commencement of the action. The defense was, that the dam was erected in 1887, and had been maintained for more than twenty years at the same height as during the time- of such alleged flowage, and that the defendants had therefore acquired a prescriptive right *228to maintain tbe same at that beigbt. Tbe answer also denied the allegation that tbe plaintiffs’ lands were flowed in consequence of the erection and maintenance of said dam. On tbe trial, after the introduction of evidence to sustain tbe allegations of tbe pleadings on each side, tbe court refused to instruct tbe jury, at tbe request of the plaintiffs, as follows : “If you find that tbe dam of tbe defendants has caused damages to tbe plaintiffs’ lands since June 17, 1858, tbe plaintiffs will be entitled to recover, although the lands may not have been so damaged at an earlier period, or during all the time since tbe first dam was erected.” At the request of tbe defendants tbe court instructed tbe jury as follows: “If you believe that tbe defendants or their grantors constructed this dam and raised it to its present beigbt in tbe fall of 1887, and that they have ever since maintained it at that beigbt, as a dam, so as to stop tbe water substantially as at present, then your verdict must be for the defendants.” After the jury bad retired, they returned into court for further instructions, and the judge instructed them as follows: “ If the dam of the defendants bad been maintained at a uniform beigbt and bead for twenty years before tbe commencement of this suit, and had not flowed the plaintiffs’ lands for the first ten years of that time, and after-wards said lands were overflowed, the presumption would be that tbe flowage bad been produced by other causes than the dam, and tbe defendants would not be liable. Under such circumstances it would be left too much to conjecture to determine that the dam was the cause of the mischief.”

Yerdict and judgment for tbe defendants.

*Levi Hubbell,*for appellants :

To make out a prescriptive right to flow the plaintiffs’ lands, tbe defendants must show an adverse possession — a continuous, actual occupancy by flowing, caused by their dam, for twenty years. *Jackson v. Schoonmaker,*2 Johns., 234; *Qayetty v. Bethune,*14 Mass., 52-3 ; Ang. & A. on Water Courses, secs. 208-221. Tbe defendants mistook tbe use and occupancy of *229tbeir own dam, on tbeir own land, for. the use and occupancy of tbe plaintiffs’ lands. *Stiles v. Hooker,*7 Cow., 268; *Baldwin v.*Galkins^ 10 Wend., 166 ; *Arnold v. Stevens,*24 Pick., 106 ; *Hammond v.*Zehner, 21 N. Y., 118 ; Angelí & A. on Water Courses, cbap. 6 ; *Parker v. Foote,*19 Wend., 319 ; 32 Pa. St., 40-46; 2 Brod. & Bing., 667. Tbe court erred in instructing tbe jury that if tbe dam bad been maintained at tbe same beigbt and bead for tbe first ten years after its erection, without flowing tbe plaintiffs’ lands, tbe presumption would be that tbe subsequent flowage was not caused by tbe dam. There is no such presumption of law ; but tbe question was one of fact, to be decided by tbe jury upon the evidence. *Campbell v. Wilson, 3*East, 294; Ang. & A. on W. 0., secs. 217-220 ; 3 Bouvier’s Leg. Inst., secs. 3063, 3067.

*Cary & Pratt,*for respondents:

1. Tbe quiet, peaceable and uninterrupted enjoyment of the dam, at a given beigbt and bead, for twenty years prior to tbe beginning of this action, was presumptive evidence of the defendants’ right to maintain it. *Booker v. Perkins,*14 Wis., 79 ; *Bealey v. Shaw,*6 East, 208 , *Balston v. Bensted,*1 Campb., 463 ; *Tyler v. Wilkinson,*4 Mason, 402; 2 Greenl. Ev., § 539 ; Ang. on W. C., secs. 203 et seq. 2. Water, being subject to fixed and certain laws, does not for ten years exhibit certain results from a given cause. Subsequently these results are produced. We submit that these facts not only raise a presumption but are conclusive evidence that these results were not tbe effects of that cause, but of some other. Ang. on W. C.;*secs. 372-387.

*By the Court,*

Dixosr, C. J.

It is obvious that the statute pf limitation did not begin to run upon the plaintiffs’ claim until tbeir lands were flowed. Before that they bad no action; and it was wholly immaterial whether tbe dam bad been built a long or a short time, except so far as it affected tbe question whether tbe backwater was caused by' the dam, or by some *230otjier obstructions of tbe. natural flow of tbe stream, not connected with tbe dam, which was a question of fact to be determined by tbe jury according as they should find from the evidence. The court was therefore wrong in giving the instruction asked by the defendants, and also in the charge to the jury upon their return into court for further advice. The instruction asked by the plaintiffs seems to have been too broad. It excluded the idea of a prescriptive right in the defendants in case the jury had found that the lands had been flowed for a period of twenty years before the commencement of the action.

Judgment reversed, and a new trial awarded.