Town of North Hempstead v. Leeds

180 A.D. 905

Opinion

It is concluded that the defendant has not title to the locus in quo, through herself or predecessors, by allotment, by grant, or by adverse possession, but that she has a prescriptive right to use the dam and its appliances for the purposes of the mill, to the degree that it has been operated, and to flood the locus in quo and draw the water therefrom for such purpose. The possession of the plaintiff is subject to that right, and the verdict should have so provided. A new trial is granted, with costs, except in this court, to abide the event, unless the plaintiff shall within twenty days stipulate to amend the verdict and judgment so as to protect the defendant’s rights as indicated; in which event the judgment, as so modified, and the order are affirmed, without costs in this court. Jenks, P. J., Thomas, Stapleton, Rich and Blackmar, JJ., concurred.