The Penn's Grove record., 1903-10-30
How 10 DRAIN THE BoR&DGH.
soltettor Roeg's opinion on Water
ss Courses and Drains.

nave " kept open and b How OF water
unobstructed, and no person has a right
to I'll up such channel or obstruct the
How Of the water in such manner as to
cause the water to back upon or over
flow the land above him on the streamo or
channel.
From time immemorial', under our
statutes means for such time as will be
sufficient to establish an easement, or
twenty years ~undisputed adverse flow of
water through the channel, and the rule
Is the same whether the channel be arti-
8cialty created or gradually worn by the
flow Of the water itself. The case Of Earl
De Hart, LIST Beasley $50, seems to settle
this point. In that case the Chancellor
said.
This water having run in the same
course for more than twenty years and
the accomplishment andthose under whom
she holds having enjoyed it as a right
during that period in its present channel,
no has a right to dam up channel or
divert the course Of the water to the in
jury of the complainant land. It makes
no difference whether tits a natural water
course or an artificial ditch.
If it is q mere ditch, and the Complain
ants land has enjoyed the use of it for
more than twenty years, and as an adj
verse right, then it is an easment which
the owner OF the Compartments land has
that of-the defendants; it is a privilege
Dplbft, and as much the subject
Of protection as a natural water course"
This opinion was pronounced in the
/ face of the objections: LIST that the guam
tity Of water was so small that the person
injured could take care Of it in other
| ways. The Chancellor held that he did
| not have to do SO, but had a right to have
the channel preserved which had been
used IN the past. I'd, that the law did
| not amply to building lots in a city or
large town. This objection was over
ruled. The Chancellor ordered an injunc-
ton requiring tile obstruction to the
channel or ditch to be removed. The
| Court Of Errors and Appeals affirmed the
decree bv q unanimous vote and so far as
/ have been able to discover the case
stands as the law Of this state to this day.
Applying this decision to the ditch or
drain crossing State street and running
down the edge Of the Baptist church lot,
/ If the facts have been correstly stated to
I me. that this has been a channel for
twenty wears or more, through which
the water running from land on East side
| Of State Street and down the cutters on
State Street itself has been accustomed to
| flow, then the filling up of this channel
on the West side of State street along the
line OF the Church lot, so as to prevent
he flow of the water and causing it to
back up on the East side Of State Street or
on the street itself is a nuisance which
can be abated either by the act of the
party injured or by injunction from the
Court Of Chancery.
AS to the duty of the Borough in the
premises, / advise you that in so far as
the filing up Of this ditch Injuries private
property owners the Borough Council has
no cause to interfere. If the filling upin-
jures property under control Of the Bor-
ough, as by flooding the street, endanger-
ing travellers, destroying public bridges,
OF in any other way affecting the rights
of the public the Borough Council may
and should, on that ground, cause the
nuisance to be abated, either by entering
the premises and removing the obstruc-
ton, alter notice to the owners to do SO
and their refusal, or by applying for an
injunction out OF Court of Chancery. The
latter course is preferable as it is not al
WAYS advisable for parties to take the law
into their v hands. I do not think it
Is the right or duty Of the municipal I
ity to take no the injuries to private per-
sons Nv the acts Of other persons in cases
It this character. Its duty extends to
nrotact;on az the property Of the public |
an;oved s common such as roads foot.
uavs ana the ike from Injuries affectino
:. r,,hI;. ruo This o-n;nion will annlv |
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