Clark v. Debaugh

Robinson, J., delivered the opinion of the Court. The appellant is the owner of a mill known as the “Rock-land Factory,” and the appellee is in the possession of a tract of land adjoining, through which the mill-race flows. Both parties claim title under a deed of partition between William F. Johnson, and William Tagart and wife, dated 24th of September, 1842, by which Johnson conveyed to Ann, the wife of William Tagart, that portion of the estate'lying east of the turnpike road, reserving, however, to the said Johnson, “ the entire water-right as then enjoyed by the Rockland Factory, with free ingress and egress for the repairs of the dam and race, and a sufficiency of earth for said repairs.” The larger part of the tract of land thus conveyed to Ann Tagart lies on the east ⁴³² side of the race, the dwelling-house and farm being on the west side. A meadow of about ten acres lies on the east side, and the appellee’s cattle, while grazing in the meadow, have free access to the race, and on being driven to the barn are obliged to cross it.

This suit is brought to recover damages for injuries to the banks and to the race, alleged to have been caused by the appellee’s cattle while standing in and crossing the race. There can be no difficulty whatever in regard to the rights of the respective parties under the deed of partition, nor in regard to the principles of law applicable to the case. As owner of “the Rockland Mill,” the appellant is