12 Minn. 137 | Minn. | 1866
By the Gowrt.
This is an action of an equitable nature, in which the relief sought is the removal of the dam complained of, and an injunction restraining the defendants from ever erecting or maintaining a dam so as to injure the plaintiffs’ described premises. The application for. the interference of a Court of Equity rests, as it could only rest, upon the alleged fact that the dam is an existing nuisance. It is contended by the counsel for the appellants, that the limitation provided in Section 12 of Chap. 60, found on page 533 Pub. Stat., applies to this case. By this section the time
The complaint here alleges “that ever since the year 1857, the defendant has maintained a dam &c., * * * that a portion of the dam was erected by one Franklin Steele at a time prior to said first of July, 1856; that the other and the larger portion of said dam was erected by the said defendants subsequently to said first day of July, 1856; that the said dam so maintained by the said defendants, ever since the year 1857, has caused the water to flow back, &c. * * * * * * it qqpfg action was commenced September 11, 1865. It is obvious that it does not clearly appear from the allegations above quoted from the complaint, that the statute had run against the plaintiffs by the lapse of ten years after the cause of action accrued, and before the commenement of the present proceeding. The position taken by the counsel for the appel
As to Samuel H. Chute, the allegation that he is “aiding and abetting ” the respondents in maintaining the dam, is of course unavailing to constitute a cause of action against him. But it is alleged that “ the said Chute has, or pretends to have, some title to, or interest in the land on the east shore of the river at the point where the dam abuts against said shore.” If this be so, as one object sought in this action is
The separate demurrer of Chute was therefore also properly overruled.
The order appealed from is affirmed and the action remanded.