Rudd v. Williams

Citations

• 43 Ill. 385

Syllabus

<p>1. Pleading—of the declaration—allegations and proofs must correspond. Where a plaintiff by Ms declaration, claimed a prescriptive right to the use of the water of a certain stream for his mills, and the testimony failed to sustain such claim,—held, that he was bound to establish Ms case, as stated in the declaration, and Ms failure to do so was fatal to a recovery.</p> <p>2. Pbescbiption—a right by — what wül not be considered. In such case, where it appears hy the proof, that both parties had the right to erect a dam and mill on the stream in question, and the plaintiff’s cause of action consisted wholly in the alleged fact that the defendant’s dam flows the water back on the plaintiff’s mill-wheel, a prescriptive right is not established, and an action for such injury cannot be based upon such right.</p> <p>3. Same — concerning the obligations of parties to each other. And, under such circumstances, it is the bounden duty of each of the proprietors so to use the water of the stream, as not to injure the other in the use and enjoyment of his property.</p>