Kilgour v. Ashcom

A, died intestate, seized of a tract of land on which there was a gmtmill then in operation» On a division of the Jane! under the act to direct descents, amongst his heirs, the mill was on the part allotted toB, the dam of which covered a portion of thi. part allotted to that B had a right to use the mill & dam in the same way, and to the same extent, as they had been used by A in his litiMme

Appeal from Saint-Mary’s county court. The appellee brought an action on the case against the appellant for obstructing a water course* &c. The injury complained of, and set forth in the declaration, was overflowing lands by the back water from a mill in the occupancy of the plaintiff below. The defendant pleaded hot guilty, and issue was joined. A warrant of resurvey was issued, and the lands were laid down on plots returned. At the trial, it was given in evidence, that John Keech died intestate, and at March term 1805, á petition, under the act to direct descents, was exhibited in Saint-Mary’s county court by his heirs, for a division, &c. of his real estate, and a commission of partition issued. The return of the commissioners was finally ratified by the court at August term 1808. By this return it appears that the real estate of J. Keech was divided into five parts, of which Mary Keech was entitled to one part, and Samvel Keech to another part. The plaintiff is the grantee of Mary Keech, and the defendant the lessee of Samuel Keech. It was proved, that in the allotment made by the commissioners, a grist-mill, then in operation, became the property of Samuel Keech, the defendant’s lessor, and the part adjacent became the property of Mary Keech, the plaintiff’s grantor. A small portion of the mill-dam was included in the part allotted to Mary Keech, and this is the locus in quc, where the injury complained of is stated to have been committed. It was also proved, that the mill remained in the same situation in which the common ancestor, J. Keech, left it, to the time of the partition, and from that time to the time of bringing- this action. The defendant then prayed the court to instruct the jury, that if they believed from, the evidence that the land laid down by the plaintiff as his pretensions and claim, and the land on which the mill stood, and the dam thereof and appertenances, now held by the defendant, belonged to J. Keech, and descended to the grantor of the plaintiff, and Samuel Keech the landlord of the defendant, and was respectively allotted to them by the commissioners in the same plight and condition which the same was in at the impetration of the original writ in this cause, that the plaintiff was not entitled to recover. - But the court, £Key and Plater, A. J,(a) refused to give the opinion, but instructed the jury, that if they believed the facts stated, the plaintiff was entitled to recover. The defendant excepted. Verdict and judgment being for the plaintiff, the defendant appealed to this court.