Walker v. Butz , 1 Yeates 574 ( 1795 )

Action on the case, for obstructing a water course, running into the plaintiff’s meadow.

The plaintiff fully made out his case. Articles of agreement were made in 1751, between John Walker, the father of the plaintiff, and Thomas Wilson, who sold the premises to the defendant, whereby Walker exchanged 7 acres of land with Wilson for 10% acres of his land, to accommodate the latter with a good mill-seat; and Wilson covenanted that Walker, his heirs and as*signs should have the free r^qvq privilege of using the spare water from his mill, pro- L vided.the same did not prove hurtful thereto,'and in case the privilege should injure his mill, that he should receive immediate compensation for the same, according to the award of neighbours to be appointed for that purpose.

Messrs. Sitgreaves and Thomas, pro quer. Messrs. Ingersoll and Clymer, pro def.

The mill was erected, and old Walker in his life time carried the water from the forebay into a ditch leading through Wilson’s lands to his meadow, and highly improved the same, without doing any injury whatever to the mill. In 1792, the defendant purchased the mill and land from Wilson, with full notice of the agreement, but his conveyance from Wilson on the 15th April 1793, contained no exceptions or reservations.— Shortly afterwards the defendant endeavored to purchase the plaintiff’s meadow ground, which received the water from the mill. But failing herein, he maliciously nailed up the floodgate,. which introduced the water to the ditch, and thereby greatly impoverished the plaintiff’s meadow, without doing himself any advantage. Pending this suit, the defendant sold the mill and lands to one Weaver.

The plaintiff’s counsel did not go for damages, though their client suffered considerably. By a written engagement filed in court, they agreed to release the damages to be found by the jury, on the water right being secured to the plaintiff according to the ancient agreement, in such manner as should be agreed to by the counsel on both sides. The damages laid in the declaration were 500I.

The jury under the directions of the court found 490I. damages and costs against the defendant. And the court ruled, that Kspendens was a sufficient notice to Weaver, the purchaser. Vid. 2 Cha. Ca. 116. 3 Atky. 174.

See the case of Clyde v. Clyde, where exemplary damages were given in assumpsit, in a like case.