advantages of his own land, can establish a servitude upon the land of another;" and they deny that any length of enjoyment of a natural spring of water upon one's land, gives the owner any prescriptive right to continue it against a disturbance by another adjoining owner, in the proper prosecution of his business upon his own premises.

In Chasemore vs. Richards, COLERIDGE, J., in a dissenting opinion, was inclined to the notion that a mill-owner might, by long enjoyment of water percolating through the earth, acquire a prescriptive right thereto, while GOULD, J., in Ingraham vs. Hutchinson, 2 Conn. 597, impugns the doctrine of Balston vs. Bensted, as not being well founded or tenable.

In this state of the law, it may not be impertinent to examine briefly the principles upon which prescriptions rest, so far as they apply to cases like that under consideration. We are encouraged to do this, from a conviction that such an examination will lead to the same conclusion to which the later cases in England and our own courts obviously tend.

Regarded as a right, jure naturæ, as incident to the ownership of the property, this does not depend upon length of enjoyment. My right to the unobstructed, undiverted flow of water in a natural stream running through my land, is as complete the first hour of my ownership, as it will be after fifty years' enjoyment, because it is an incident, jure naturæ, to the property in the land.

Prescription, therefore, is something other than and distinct from what is naturally and necessarily an incident of property in lands. As applied to easements and servitudes, it implies something accessary or added to the natural rights of such property. And this can only be acquired by grant, wherein one gains something with which another parts. Prescription always implies a grant; and long enjoyment of what is claimed, if had under certain circumstances consistent with such a prescription, is deemed by law, to be evidence of such a grant having been made. Under the ancient notion of prescription, this enjoyment must have been continued so long that no one could negative its having originated in right. In modern times, the courts have adopted

the analogy of limitation of titles to land, and hold an enjoyment under the circumstances alluded to, continued for the length of time prescribed by local statute as the period of limitation, to be presumptive evidence of a grant having been made, and they do not require the party relying upon it to produce his deed, assuming as a presumption of law, if it is not produced, that it has

been lost.

One of the circumstances requisite to raise a presumption of such a grant from mere enjoyment of what is thus claimed, is that it should be adverse to and so exercised, as to be known by the party against whom it is to prevail. "Nec clam nec precario," as well as that the acts done should be with an intent thereby to claim a right, are admitted by all writers to be among the requisites of establishing a prescription.

These principles are too elementary to justify the citation of authorities to sustain them. And yet it seems only necessary to apply some of the most familiar of them, in guiding us to a satisfactory solution of the question how far one can acquire a prescriptive right to the enjoyment of underground waters, against the acts of an adjacent landowner done within the limits of his own

estate.

In the first place, in digging a well or drawing water from a spring within one's own land, he does no more than exercise a clear legal right. If his is the only spring or well in the neighborhood, he enjoys it to the injury or disturbance of no other person's right. Nor can this be in any sense, adverse to the right of any one. Ordinarily, it would be difficult or impossible to know from what direction the water is passing to reach his spring or his well, so that, if there be several adjoining owners, he cannot know against which of these he is acquiring an adverse right by enjoyment. And if it can be supposed that he knows, and intends to draw the water from the land of an adjacent owner, how far can he extend this? If the supply is derived from a quarter or half a mile, or as in the case mentioned, of the Artesian well, can it be supposed that he intends to claim a right as against landowners so remote ?

Again, can an adjacent landowner in such a case, be presumed to know that the owner of the well or spring, is deriving the supply for this from his land, and in that way be held to acquiesce in the exercise of a right adverse to himself?

In the next place, as every prescription implies a grant where there is a grantor who parts with something intentionally and understandingly, and a grantee who, with a like intention and understanding, accepts what is granted, it is certainly a most forced presumption of a grant where neither party would have known, during the period of the pretended acquisition of the right, that the one was deriving what he was enjoying from the other.

The first moment that the one party can know that he is using what he derives from the other, is when the latter, in the exercise of an unquestioned right of property, excavates within his own premises for a well, or for minerals, or a quarry, and detects the source of supply which his neighbor, more or less remote, has been enjoying. And with what propriety can it then be said, that the latter has acquired a prescriptive right to the enjoyment, by its having been continued twenty years adversely to the other landowner, and with his knowledge and acquiescence?

The nearest analogy, perhaps, to an easement of this kind, would be that of light, under the English Common Law, and that of the lateral support of the land of one by that of another. In respect to the latter, it is rather a simple incident of property than an easement, and if it is claimed also for the support of a house on the land, because it was an ancient one, the fact that the house was there and was acquiring an easement of support, would be obvious to the adjacent landowner, as would be the case in respect to a house in whose favor a prescription of light and air should be claimed.

Without pursuing the inquiry any further, the conclusion seems to be clear, upon general principles, that the doctrine of prescriptive rights cannot properly be applied to the enjoyment of water percolating through the earth. And it may be remarked, that even in the matter of light and air, there are so many objections

to adopting the rule, that the idea that one may acquire such a servitude over another's land by mere length of enjoyment, does not find favor with the American courts, and has been rejected as law in several of the states.

In conclusion, if any one shall be inclined to believe that a larger space has been occupied with this subject than its importance deserves, it is only necessary to remind him of the magnitude of the interests which may be involved in the questions here examined, and of the recency and limited number of cases in which decisions have been had, together with the learning and iabored analysis, which some of the ablest judges in England and in our own country have devoted to the investigation.

CAMBRIDGE, MASS.

E. W.

RECENT AMERICAN DECISIONS.

(New York Court of Appeals. March Term, 1862.)

CHRISTINA WILDS, ADMINISTRATRIX, ETC., v8. THE HUDSON RIVER RAILROAD COMPANY.

In an action claiming damages for the negligence of the defendant, the plaintiff cannot recover unless he was free from any degree of negligence which contributed directly towards the production of the injury.

Negligence is a question for the jury in all cases where upon the evidence the fact of it having occurred is fairly doubtful. In all other cases it may be determined by the court, as a question of law.

At a railroad crossing it is carelessness in any one approaching with a team, not to stop and listen, in order to find out whether a train is approaching, before attempting to cross. Per GOULD, J.

A request on the part of defendant for an instruction to the jury, "That if the negligence of the deceased" (plaintiff) "in any way contributed to cause the collision, which resulted in his death, plaintiff cannot recover," contains a legal proposition, "the true legal rule of the case, and he was entitled to have it given to the jury, substantially as he asked it, without qualification, or to have it plainly refused." Per GOULD, J.

The danger at the crossing of a railroad and street at grade is one for which

travellers are as much bound to watch, and to guard against, as the railway

company, and the negligence of the company will not excuse or qualify the duty of watchfulness on the part of the traveller. Per GOULD, J.

A request on the part of defendant, to charge the jury, that if the deceased was aware of the approach of the train, before he drove upon the track, and voluntarily drove upon it, after being so aware of its approach, he cannot recover, should be answered in the affirmative. Per Gould, J.

John H. Reynolds, counsel for defendants, appellants.

William A. Beach, counsel for plaintiff, respondent.

GOULD, J.-This case comes before us on two appeals; one from an order of the General Term of the Supreme Court, affirming an order of the special term which denied the defendant's motion for a new trial, made on the minutes of the judge who tried the cause; that appeal bringing the case up as if on a case made. The other appeal is from the judgment of the Supreme Court, affirming the judgment rendered at the circuit on a verdict; this appeal bringing before us the exceptions taken by the defendants to different parts of the charge to the jury, and also the exceptions taken to the denial of the defendants' two motions for a nonsuit; one made at the close of the plaintiff's testimony, the other made at the close of all the testimony.

The right to recover damages for this class of injuries to the person (whether asserted by the party injured, or by his representatives under the statute), depends upon two concurring facts.— 1st. The party claimed to have done the injury must be chargeable with some degree of negligence, if a natural person; if a corporation, with some degree of negligence on the part of its agents or servants. 2dly. The party injured must have been entirely free from any degree of negligence which contributed to the injury, i. e. of any negligence without which the injury would not have happened.

These essential elements of such a cause of action are as absolutely distinct from and independent of each other, as are the two opposing parties, and each and both must be by itself in the case, upon the evidence or there can be no recovery. The question presented to the court or the jury, is never one of com