| Mass. | Sep 15, 1867
The deed of Waitstill Dickinson to Stacy es tablished the relative rights of the parties at the time of its exe cution; and it does not appear, nor does the plaintiff contend, that any easement for drainage was reserved to the grantor arising out of necessity. The deed also raised a presumption against Dickinson and his grantees, not only as to a subsequent claim of a right of drainage, but as to the subsequent useSof such an easement; so as to throw the burden of proof upon the plaintiff in this case to satisfy the jury not only that such an easement had been openly and continuously used for twenty years, without interruption, but had been used as of right, and not by license.
The judge instructed the jury that this burden was upon .the plaintiff; and if the request for instructions did not mean more than this, it was substantially complied with. If it went beyond this, it was properly refused, for this was all that the defendant could claim. We think the instructions were sufficient, and were in conformity with the principles which are fully stated in the decision of the case 12 Allen, 516.
The instructions as to what acts and declarations would be sufficient to constitute an adverse user under claim of right were also sufficient. The uninterrupted flow of the stream from the plaintiff’s land, through the ditch, was itself a material fact. The acts and conversations respecting the cleaning out of the ditch were to be taken in connection with it, and we think the verdict was rendered upon sufficient evidence.
Exceptions overruled,.