feet to a point; thence by land of John Lefever, south 634 degrees west, 1736 feet to a point; thence north 37% degrees west, crossing the Downingtown and Lancaster Railroad, 565 feet to a point in a lane; thence along the same, by land of I. Landis, north 361⁄2 degrees east, 554 feet to a stone; thence still by said land, north 2434 degrees east, 815 feet to a point; and still by said land, south 334 degrees east, 624 feet to a stone; and still by said land, crossing the aforesaid railroad, and along the north side of a lane, north 79 degrees east, 1080 feet to a point; thence south 451⁄2 degrees east, 28 feet to a point in the middle of the aforesaid public road; thence along the middle of same, south 91⁄2 degrees east, 256 feet 3 inches to a point; and thence still in said road by land of C. Latschar, south II degrees east, 51 feet 3 inches to the place of beginning; containing 36.125 acres."

In this deed, it is recited that it was "the greater part of the same premises which John K. Hartman, one of the executors of the will of Henry F. Hartman, deceased, by his deed dated April 2, 1900, . . . conveyed to said Catherine Hartman, her heirs and assigns."

The land now belonging to Lydia M. Hartman, one of the defendants, was originally vested in Peter Johns, the Elder. He having died intestate, his farm, which then consisted of 121 acres and 126 perches, was accepted by John Bushong as guardian of his son, Peter Johns. This Peter Johns died on February 6, 1893, and his administrators d. b. n. c. t. a., by deed dated April 1, 1899, conveyed to Israel B. Landis the following described tract of land:

"All that certain messuage and tract of land, situate in Township of East Lampeter, beginning at a stone, corner of land of David Landis, and extending thence along said David Landis, north 45 degrees east, 78.1 perches to a stone, in road leading from Witmer to New Holland Turnpike; thence along said road, south 341⁄2 degrees east, 41 perches to a stone; thence along land of John E. Musser, north 594 degrees east, 64.45 perches to a stone; thence along land of Solomon Stoltzfus, south 37 degrees

east, 97.55 perches to a stone; thence along land of Henry Landis, south 5834 degrees west, 10 perches to a stone; thence along land of Henry Landis and Henry F. Hartman, south 59 degrees west, 74.6 perches to a stone; thence along said Hartman's land, north 42 degrees west, 7 perches to a white oak stump, marked in all the conveyances of the herein granted and adjoining premises since the Proprietary grants of 1761, '62 and '63, to the present time, as a white oak tree; thence along said Hartman's land, south 78% degrees west. 65.7 perches to a stone; thence along land of said Hartman and Isaac Landis, north 341⁄2 degrees west, 90.3 perches to the place of beginning; containing 92 acres and 86 perches. Exclusive of 3 acres 37 perches which Peter Johns and wife, by deed dated May 21, 1890, Q. 13. 200, granted and conveyed to Downingtown and Lancaster R. R., and which is embraced within the boundaries above set forth, but which is expressly reserved and excepted out of this conveyance."

By deed dated February 7, 1908, Israel B. Landis and wife conveyed a portion of this larger tract to Lydia M. Hartinan, wife of David K. Hartman. The tract thus conveyed is described as follows:

"All that certain tract of land, situated in East Lampeter Township, beginning at a stone and extending along land of J. E. Baker, formerly estate of Henry Hartman, deceased, north 34 degrees 30 minutes west, 610.76 feet to a point at a run; thence along said run and along other land of said Israel B. Landis, north 45 degrees 20 minutes east, 574.57 feet to a point; an' thence by said Israel B. Landis other land, south 34 degrees 30 minutes east. 591.29 feet to point; thence along the Downingtown and Lancaster. R. R., south 40 degrees 15 minutes west. 533.97 feet to a point; thence south 76 degrees 43 minutes, west, 54.04 feet to the place of beginning. Containing 8 acres."

The land of the plaintiff lies both on the east and west sides of the Downingtown and Lancaster Railroad, but the lime quarries are situated on the west side of it, the land on the east side being

used as farm land. The land of the defendant, Lydia M. Hartman, is located on the west side of the railroad. There is, and always has been, from time immemorial, a lane, running from the public road, which bounds the plaintiff's property on the east, westward to the quarries upon his land. It is designated in the old draft presented by the defendants as a "Private Lane," and it is admitted, in paragraph three of the answer, as being laid out over and through plaintiff's land." The south line of the defendants' property, for a distance of 54 4/10 feet, is bounded by the lane on the south. There is no road out from the defendants' land; but the material parts of the plaintiff's brief of title show that the respective lands of the parties hereto were never vested in a common ownership, and it follows, therefore, that no right by necessity arose against the plaintiff or against those under whom he holds. Such a claim, if made at all, could only be made against the defendants' vendors, who at the time of their conveyance, owned the land to the public road. Many years ago, and before there were lime kilns upon the plaintiff's land, there was a gate across the lane; but, afterwards, its use was suspended. The way was open to those who wished to drive to the quarries and sometimes it was also used in going to a cider mill upon the farm of Isaac S. Landis, which was located just beyond. The tenants of Peter Johns also went over it from time to time, but whether by permission or under a claim of right did not appear. Israel B. Landis, defendant's grantor, testified that, at one time, he hauled stone out of the lane for a building, and that he did not ask permission to do so; but he also stated that he never claimed any right to the lane, and did not exercise any right to it, except that, when he wanted to go in for business at the lime kiln, he went in. When Peter Johns owned the original tract from which the defendants' land came, there was a stone quarry and lime kiln upon the place. It did not appear that any lime was sold; but the kiln was used for the farm. There was no evidence that any business of this kind was carried on at that time.

No lime was burned on the defendants' tract for twenty-five or thirty years before they bought it. No objections appear to have been ever offered to people passing in and over the lane; but there was no evidence that it was ever maintained by the public. There has been a gate across the lane, located about one hundred yards below the corn crib on the plaintiff's land, for from three to five years past. A chain was put around it, and Mr. Hartman was notified to keep out. He did so for a while, and then came back and toli the plaintiff's manager that he had is much right to use the lane as they had. It is out of this controversy that the present suit has arisen. It was also testified by Israel B. Landis, defendants' grantor, that, when he bargained with David Hartman for their property, he told him that he would not sell him any right to go over his (Landis's) land, and that he would not sell him any right to go out on Baker's lane. It was also proven, by the defendants, that, when Henry F. Hartman, the father of David K. Hartman, owned the Baker property, he widened the lane on his side. It can hardly be concluded that he did this for his neighbors' and the public's use, or that he would have acted without consultation with any one, except for his own benefit.

The right of the defendants is based solely upon prescription, and, under the evidence presented, we are of opinion that such a title has not been sufficiently made out, and we, therefore, so find.

CONCLUSIONS OF LAW.-If the defendants and their grantors were in possession of this lane and had been for more than twenty-one years, and the plaintiff was attempting to take away from them. its use, it might properly be urged that the dispute ought first to be determined at law, before this injunction is maintained against them. But such is not the present proposition. Here, the right of way admittedly belongs to the plaintiff, and it is appurtenant to his quarry and lime kilns. The defendant, Hartman, is passing over it under a claim of right; but he has, by his evidence, shown no title by prescription. When interfered with, he could have brought an action of trespass

to settle the right, or he can, perhaps, | even now, have this dispute certified to the Common Pleas for trial. The Act of June 7, 1907, P. L., 440, declares that, where a bill in equity has been filed, in which the jurisdiction of the Court is questioned upon the ground that the suit should have been brought at law, that question should be decided in limine, before the bill is proceeded with. These parties, therefore, have an adequate remedy, if they choose to avail themselves of it.

But, aside from this, I do not think the defendants have shown any title upon which they can rest. It has been proven, as has been said in the Findings of Fact, that Mr. Landis, the defendants' predecessor in title, did not, in the nine years during which he owned the larger tract, claim a right to use this lane, nor did he sell any such right to Mrs. Hartman. Nothing of the kind appears in the written grant, and in his testimony he expressly states that he refused to give her any such right. How, then, can she claim that a prescriptive right to the part of the land thus purchased from him attached to her grant? In addition, there is n evidence that the owners of the larger tract ever made any claim by prescription to use the lane by such assertion of right as was necessary to give them a right to it. In Bennett v. Biddle, 140 Pa., 396, it was decided that "the rule that mere possession, however long continued, will not give title tt.der the Statute of Limitations, is applied to a right of way claimed by prescription. In order to give title, such right must not only have been enjoyed without interruption for twenty-one years, out that enjoyment must have been adverse to the right of the owner of the land. It was here shown that two brothers who owned adjoining farms permitted each other to pass over the fields as a matter of mutual accommodation. After the title of one had passed to a stranger, such travel was continued for more than twenty-one years, but in the same spirit of accommodation. It was held that the user of neither party was adverse to the other, and that no easement was acquired thereby. In Fidler v. Rehmeyer, 34 Sup.,

275, it was said: "It is a well-established rule of law that mere possession will not give title, though such possession may have continued for a long period. The possession necessary to accomplish this

result must be adverse to the title of the owner. Where one enters in subordination to another's title, the statute will not begin to run in his favor until he does some act which destroys the relation. Wheeler v. Winn, 53 Pa., 122; Cadwalader v. App, 81 Pa., 194; The Tinicum Fishing Company 7. Carter, 61 Pa., 21. This rule applies to This rule applies to a right of way claimed by prescription. Such a right must not only have been enjoyed continuously for twenty-one years, but such use must have been adverse to the rights of the owner of the land, in order to give a title. Okeson v. Patterson, 29 Pa., 22. ... A grant will be presumed, where one uses a road over another's land without objection and without asking for the privilege, but this presumption may be rebutted and the use may be shown to have been in subservience to the title of the owner of the land. . . . If the use of the way grew out of the intimate relation of father-in-law and son-in-law for mutual convenience and accommodation, and was continued by them and their successors in title in the same way and in the same spirit of mutual convenience, such enjoyment would not be adverse and no title would be acquired thereby.

In this case, the lane leads from the public road to the quarry and lime kilns of the plaintiff. The mere fact, therefore, that persons going to and from the quarry and lime kilns, and even at times to other places adjacent, occasionally used the lane, does not give to the defendants any right by prescription.

It is, however, urged that the public generally used this lane, and a right is contended for on the strength of this use. In our own case of Shank and Breneman v. Eakert, 23 Lanc. Law Review, 381, one of the learned counsel for the defendants successfully contended for the converse of this contention. There, a yard between a house and barn, formerly used as a hotel, was left open for the use of the public, and private alley-ways, belonging to adjoining own

Nissley v. Drace (No. 2).

Water right-Prescription—Abandoned

Mill-race-Injunction.

lic and by the owner for such purposes as he desired, for more than thirty years continuously, gave the public no right against the will of the owner, for the use was not adverse to him, but by his consent. And it was not exclusive by the public, but in common with him for travel and entirely in him for several purposes of a private character: Irwin c. Dixion, 9 How., 10. From the nature of wharf property, the access must be kept open for the convenience of the owner and his customers; but the property continues private. No length of time during which the property is so used can deprive an owner of his title, nor give the community a right to abate the owner's fences over it as a nuisance on the ground that they have acquired a legal easement in it." The same argument can be used with equal force in the present case. In Griffin's Appeal, 109 Pa., 150, it was held that "long continued use by the public is evidence of an intent to dedicate, but it is by no means conclusive and always yields to contrary proof of a satisfactory character;" and in Zerbey v. Allan, 215 Pa., 383. that "where a user is with the knowledge and acquiescence of the owner of the land traversed, and is under his leave, favor and permission, and at his will, no title by prescription can arise." See, also, Woodbury v. Allan, 215 Pa., 390.

Under the evidence and the law, I am of the opinion that the injunction should be continued until final hearing, and the motion to dissolve it is, therefore, dismissed.

Injunction continued and motion to dissolve dismissed.

A land owner who has used the mill race

age purposes cannot enjoin an adjoining land owner from building a wall across the mill race where it enters his land.

The damage from such being only occasional, in case of flood would properly be determined by an action of trespass.

Bill for injunction, answer and proof. C. P. of Lancaster County. Equity Docket No. 5, page 446.

be

1909, the plaintiff purchased from Susan R. Musselman a tract of land, located in East Hempfield township, this county, bounded and described as follows, to wit: "All that certain grist mill, messuage, tenement and tract of land, . ginning at a stone; thence by land of Benjamin L. Nissley north 61⁄2 degrees west 27.5 perches to a stone; thence by land of Abraham L. Nissley south 88 degrees west 13.5 perches to a stone; thence north 91⁄2 degrees west 2.8 perches to a stone; and north 87 degrees west 35.2 perches to a stone; thence by land of Morris K. Kauffman south 62 degrees east 33.5 perches to a stone; thence by land of Benjamin L. Nissley north 88 degrees east 49.3 perches to the place of beginning; containing 9 acres and 61 perches, strict measure. specific mention was made in this deed as to the dam and water rights attached thereto; but, at that time, the mill was standing, though it was not operated, and the dam and the head race lay across a public road to the west of it. The tail race extended first over the Drace property, and thence in an easterly direction. through the property of the defendant,

No

from which it entered the main stream below. The mill has not been operated since about 1899, and four or five years ago, the building was torn down. After the dam ceased to be used, the channel from it through the mill and tail race over the public road was filled up by the plaintiff, and thereafter it was impossible for any water to pass into the tail race from the west, except by slight percolation. There is no evidence that, at the present time, even this continues.

Some time before the filing of this bill, the defendant constructed on his land a brick wall over what was the channel of the old tail race. It is about three feet high, but not quite the height of the banks of the race. The plaintiff alleges that water carried through a pipe from his house cellar, and also drainage from the highway, which formerly went into the tail race, are, by reason of the maintenance of this wall, interfered with, and that the water at times backs into his well and renders it unfit for use. It has, however, not been established by the testimony that the purpose of the tail race was the drainage of either the cellar of this house or the land belonging thereto, and there is no such right contained in any of the deeds. The defendant's house is located to the northeast of the land of the plaintiff, and is upon higher ground. The right of the plaintiff to use the tail race for drainage purposes has never been established by an action at law.

CONCLUSIONS OF LAW.-Each of the contending parties claims that the case of Nissley v. Drace, 29 Lanc. Law Review, 121, has settled the points raised in this controversy in their respective favor. As a matter of fact, the dispute there decided related to other matters than those here involvd. It is true that it was there found that there was a dam | and head race and tail race appurtenant to the mill, and it was also settled that Nissley, the present defendant, could exercise no claim along the dam and races, these being created and maintained for the benefit of the mill. The Drace house, or any rights which it might have. in the tail race, was never mentioned nor passed upon, as it was the clear purpose

of the parties that its use should be the carrying off of the water as it came through the mill. When the mill ceased to be used and the passage from the dam to it was closed up, then the object for which the tail race was thus created ceased to exist. It may be that the plaintiff cannot use the balance of his land as conveniently for such purposes as he desires in view of the obstruction which the defendant has placed on his own land over the course where the water formerly flowed; but it does not seem to us that there is any good reason why an injunction should be issued by this Court for the removal of the brick wall over the old channel. We do not mean by this to say that he has no right to rebuild his mill, if he desires, and that, if he should restore it, he could not reclaim all the rights which he formerly had appurtenant to it; but at this time, when there is no mill, and the original objects and uses cannot be exercised, the plaintiff is not in a position to maintain this bill.

In addition, even conceding that Nissley has no right to build this wall to the injury of Drace, it is very apparent that the damage is only occasional, in cases of flood, and that they could easily be determined in an action of trespass. There is no such right established by the plaintiff as will enable him, by a decree in equity, to keep the tail race through Nissley's property at all times open, not for the use of the mill, but for the drainage of other portions of his land.

We are of the opinion that this bill ought not to be maintained, and we. therefore, recommend that the following decree be entered, to wit:

DECREE.-And now, April 18, 1914, it is ordered and decreed that the plaintiff's bill be dismissed at his costs, without prejudice.