Costello v. Harris

Citations

• 162 Pa. 397
• 29 A. 874
• 1894 Pa. LEXIS 992

Syllabus

<p>Waters — Easement—Prescription.</p> <p>A lower riparian owner who erects a dam and overflows the land of an upper riparian owner with the latter’s knowledge, and maintains the dam for over fifty years, acquires a right to flow the land by prescription, and he cannot be disturbed in the enjoyment of his right by the successors in title of the original owner.</p> <p>Ejectment — Waters—Title—Adverse possession — Costs.</p> <p>A lower riparian owner who overflows the land of an upper riparian owner, but makes no other assertion of ownership, acquires by lapse of time merely a prescriptive right to flow the land, but no title to the land by adverse possession.</p> <p>A lower riparian owner erected a dam on the land of an upper riparian owner causing the latter’s land to be flooded. The upper owner made no objection or remonstrance, and the dam was maintained for over fifty years. The upper owner hart within his general inclosure the flooded land, and the lower owner made no other use of the land than to flood it. The successor in title of the upper riparian owner brought ejectment against the lower owner. Defendant set up a title by adverse possession. Held (1) that defendant had no title by adverse possession, but merely a prescriptive right to flood the land ; (2) that under the evidence plaintiff was entitled to a verdict subject to the right of the defendant to flood the land; (3) that if defendant had disclaimed title and asserted his easement at the outset, he would have been entitled to his costs.</p> <p>In the above case the building, rebuilding and repair of the successive dams were not detached and unrelated entries on the land of another on which a title by adverse possession might stand, but they were the rightful and necessary acts of one seeking to maintain and enjoy the prescriptive right to flow the land of another for the benefit of his own mills.</p>