Mathews v. Ferrea

By the Court: There is evidence in these cases tending to support each of the findings of fact. Upon the issue as to whether the failure of the water in the stream below the defendant’s dam was caused by the dam, or was consequent upon the usual course of the seasons, there was a conflict in the evidence, and therefore the finding oil that issue will not be disturbed.

The point on which the defendant mainly relies is that the evidence shows that he had acquired a right by prescription to divert the water by means of his dam. To this point the plaintiffs present several answers. One is that the de[53]fendant has not pleaded an adverse user of the water; and another is that all the parties derive title to their respective parcels of land through patents issued by the United States in 1867, and within five years before the commencement of the actions. Either of these answers disposes of the point, for it is clear that the defendant cannot rely upon prescription, unless it is set up in his answer; and it is equally clear, that prescription or adverse user will not mature into a title as against the United States, and that it will not avail as a defense, unless the user has been adverse for the requisite period after the title passed from the United States.

Jtidgments and orders affirmed.