The Montgomery advertiser., 1901-10-08
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STEWART ct al. v. WHITE ct al
 Bill in Equity to Enjoin the Maintenance
 of a Mill Dam-Appeal from the Chan
 cefy Court of Cherokee.
 l. Injunction of mill dam; right Of deacons of church to maintain bill; ease ment; prescription.-Certain persons de- erty Bartist Church" filed a bill to en- join the maintenance of mill dam. It was averred in the bill that by reason of of the dam, the waters of Hurricane flowed back upon and destroyed the use of spring and place on said creek used for baptisrnal purposes, in which the complainants claimed to hold rights an unincorporated religious association. It was further averred that in 1858 deed was executed by the grantors named therein, in which there was conveyed to two persons "as deacons of Liberty Bap- tist Church. and to their successors as deacons of said church." for the use of the church. lot of land described as commencing at the bridge on the Jack sonville and Rome road on the south bank of Hurricane Creek. running down said creek 22 rods to water oak thence deed also contained clause. by which the grantor flor and in consideration as aforesaid. give and grant to said church the privilege of using above said bridge and road, unincumbered by them and their assigns reserving to themselves the privilege of using said spring also. followed bv the stipulations to warrant and defend the titles "to said church. whatsoever" 1t was then averred that said church, through it's deacons, for the use and benefit of said church, had been in the open. notorious. conssRuoIs nSsa snid ana spring. and also of said creek on the northern boundary of the lot, Tor tne use and benefit of said church for bap- tismal purposes, and that no one had ex- ercised any control over either the spring or creek at the place designated from 1858. the time of the obstruction com plained of, except said church. Held
 Q) That said deed gave to the com plainants no property right or title Tn the spring or creek. because 1t does not show that the grantors in said deed eyer owned such property, ana because ;ne ;ne terest in either the creek or spring; ana that, therefore, the complainants are not entitled to the relief prayed for py reason neither @ as ,individuals in a representative capacity, any property right or title. py reason of said deed, in either the spring or creek. creek. CT
 3. Easement by prescription; what nee. essary to be shown-Where an easehen. i' Is claimed by prescription, 1t must De shown that the user and enjoyment was adverse to the owner of the estate under a claim of right exclusive. unincumpereu and with the knowledge, actual or pre- stunned, of such owner; and if the user is merely presumptive, tolerated by the owner or held under an implied license l from him, 1t Is revocable at pleasure, ana | will never ripen into title oy prescrip- tion . 3. Churches; unincorporated can not | hold title.-A church society coiiecuVeiy' | which Is unincorporated. is without ca paclty to acquire or hold utie to prop- l erty. ..n,.s, | 1. Same; rights of deacons as officers
 of the church to acquire property.-A | deaconship in a church pertains onIS ,, W eo
 recognized in secular government; and
 therefore. deacons of a church, as such.
 have no capacity to either acquire ssoIs rs | in their ecclesiastical office any rights
 or titles to property. and have no right | to sue in their official capacity as such | deacons.
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