May Term, 1855. KENTON V. SPENCER. Tuesday, June 5. understanding that he was to have an opportunity to examine his witnesses afterwards; that the plaintiff's witnesses were examined, consuming most of the allotted time; that one witness was examined for the defendant, when the hour of four arrived and the plaintiff refused to proceed further in taking depositions; that the officer who was taking the depositions decided that he could not proceed without the consent of the parties; that the plaintiff immediately left the town and he had not time to serve him with another notice and take the depositions before the term; that he then had witnesses ready to be examined, by whom he expected to prove most of the matters alleged in his answer by way of defence, and that the affidavit was not made for delay, &c. Held, that under the circumstances, the defendant had a right to a continuance. Where junior mortgagees are made defendants to a bill of foreclosure, and make default, the Court can not order a payment of their respective mortgages, but should merely foreclose such mortgagees in favor of the plaintiff. ERROR to the White Circuit Court. GOOKINS, J.-Bill in chancery by Spencer against Kenton and wife, to foreclose a mortgage. Kenton pleaded that Stockwell and others were junior mortgagees of the same premises, whereupon the plaintiff amended his bill and made them parties. Kenton answered, admitting the execution of the mortgage to the plaintiff, and setting up certain matters of defence in avoidance, to which the common replication was filed, and the cause was continued until the next term for depositions. The holders of the junior mortgage made default. At the term to which the cause was continued, Kenton moved on affidavit for another continuance. The motion was denied, and the cause was set down for hearing. A decree of foreclosure was rendered for the amount of Spencer's mortgage, and an order of sale was made, with directions to the sheriff, after discharging the plaintiff's debt, to satisfy the junior mortgage, without specifying any amount, and to pay the overplus to Kenton. The motion for a continuance was founded on an affidavit, stating that notice was given by the defendant for taking depositions at Monticello, on the 29th of April, between 10 and 4 o'clock; that the parties attended, when the plaintiff proposed to examine two witnesses first, the defendant waiving notice, and that afterwards those of the defendant should be examined, to which arrangement he assented, fully understanding that he was to have an opportunity to examine his witnesses afterwards; that the plaintiff's witnesses were examined, consuming most of the allotted time; that one witness was examined for the defendant, when the hour of four arrived, and the plaintiff refused to proceed further in taking the depositions; that the officer who was taking the depositions decided that he could not proceed without the consent of the parties; that the plaintiff immediately left the town, and he had not then time to serve another notice and take his depositions before the term; that he then had witnesses present, ready to be examined, by whom he expected to prove most of the matters alleged in his answer by way of defence, and that the affidavit was not made for delay, &c. The placita is defective, and does not state when the term of the Circuit Court commenced, but Kenton's affidavit was made on the 5th day of May, and is stated to have been sworn to in open Court. We think the special circumstances set forth in this affidavit showed sufficient grounds for a continuance, and that it ought to have been granted. It is evident that the defendant was deprived of his testimony by a trick which ought not to receive the sanction of a Court of justice. It is answered that the defendant had himself been negligent in getting his testimony, by delaying until so near the beginning of the term. It is true he might have begun sooner; nor are we to encourage negligence; and if the plaintiff had done nothing wrong, this application could not have been listened to. But the defendant was there, ready to examine his witnesses. He waived his right at the plaintiff's request. The officer mistook his duty. He might have adjourned over until the following day, if necessary, which necessity, if it occurred, was induced by the plaintiff. We might hesitate if this were a judgment at law, the reversal of which might occasion a loss of the plaintiff's lien; but as it is a proceeding to foreclose a mortgage, the plaintiff is in no danger of ultimate loss. If he is delayed, it will be in consequence of his own act, of which he can not complain. May Term, 1855. KENTON V. SPENCER. May Term, 1855. DILLING V. MURRAY. The decree is erroneous in ordering the payment of the junior mortgage by the sheriff, without fixing the amount; but for that error the plaintiff is not answerable. He had no control of the mortgage, and could not give it in evidence. It may have been paid. If the junior mortgagees did not choose to assert their rights, all the Court could do was to foreclose them in favor of the plaintiff. Per Curiam.-The decree is reversed with costs. Cause remanded, &c. R. C. Gregory and R. Jones, for the plaintiff. Wednesday, DILLING V. MURRAY. Proceeding by A. against B. to enjoin B. from obstructing the flow of the water of a stream to A.'s mill, by the manner of erecting and maintaining a dam above it. The complaint stated that for, &c., the plaintiff had been the owner of a mill, &c., propelled by water on his own land; averred the recovery of a judgment against B. for such obstruction; that the defendant still kept up the dam, &c.; and that A.'s mill had thereby been rendered valueless. Held, that the complaint was not defective for omitting to show that the obstruction of the water was unnecessary to B. in the fair and reasonable use of the stream. A party to a judgment can not impeach it collaterally, on the ground that it was rendered upon false testimony. Every riparian proprietor has an equal right to the flow of the water through his land; and no one has a right to use it to the material injury of those below him. If he diverts the stream, he must return it to its natural channel when it leaves his estate. But it is not every injury to a proprietor below that will confer a right of action: it is necessary, in every such case, to take into consideration the capacity of the stream, the adaptation of machinery to it, and all the attendant circumstances; and when all these are properly considered, if the proprietor below is materially injured, when considered in relation to the facts of the particular case, he is entitled to redress. APPEAL from the Wayne Court of Common Pleas. GOOKINS, J.-This was a proceeding instituted by Murray against Dilling, in the Wayne Circuit Court, and trans ferred to the Common Pleas, the object of which was to enjoin Dilling from obstructing the flow of the water of a stream to the plaintiff's mill, by the manner of erecting and maintaining a dam above it. The complaint states that for fourteen years the plaintiff has been the owner of a mill and manufactory propelled by water on his own land; that in the spring of 1850 the defendant erected a dam across the stream above the plaintiff's land, by which the water was diverted from its natural channel, and the flow of it to his mill prevented; that he brought an action against the defendant for said injury, to which he pleaded not guilty, and in August, 1851, he recovered a judgment against the defendant for the damages he had then sustained; that the defendant keeps up his dam, and still prevents the flow of the water; and that his mill, which was worth 3,000 dollars, is thus rendered valueless. The defendant demurred to the complaint, because it did not show that the obstruction of the water was unnecessary to the defendant, in the fair and reasonable use of the stream. The demurrer was properly overruled. It does not appear from the complaint that the defendant had any use for the water. He is not charged with the erection of a mill, but a dam. The answer admits the erection of the plaintiff's mill; but avers that for ten years previous thereto the defendant had had in full operation a mill just above it on the same stream, and had been accustomed to use all the water of the stream; that since the erection of the plaintiff's mill he has so used the water as to preserve the plaintiff's rights as far as in his power. He admits the recovery of the judgment, but seeks to impeach it for testimony given on the trial which he says was false. He states that his mill is on his own land; and that he always intends to use the water with every possible regard to the plaintiff's rights. He denies having diverted the stream, but alleges that he uses the water for his mill, and then permits it to flow freely down the channel; and particularly since said trial he has not allowed the water to be retained when he May Term, 1855. DILLING V. MURRAY. May Term, was not using it himself. He claims that having erected 1855. his works long before the plaintiff's, he has a paramount right to the use of the water, doing him no unnecessary harm. DILLING V. MURRAY. The plaintiff demurred to so much of the answer as sought to impeach the judgment, and the demurrer was correctly sustained. The reply denies the affirmative matter set up in the answer. There was a trial by the Court, which resulted in a judgment for the plaintiff, and an order that the defendant should take down and remove a dam across the stream mentioned in the complaint, called the new dam, so as not to obstruct the waters of the stream; and the defendant was further ordered so to regulate and use the water at his works as not to detain the same longer than three hours at one time, except in the night, and that he commence letting it out early in the morning, and was enjoined from using the water otherwise. It appears from the evidence taken in the cause, that the defendant was the owner of an oil-mill, the machinery of which was propelled by water taken from the stream, by means of a dam and race, all upon his own land. How long his mill had been erected does not appear. About fourteen or fifteen years ago, but since the erection of the defendant's mill, the plaintiff erected a woolen factory and saw-mill, about half or three-quarters of a mile below the defendant's, supplied by water in the same manner, and situated upon his own land. The capacity of the stream was not such as to furnish a constant supply, except in time of high water; and at low and ordinary stages the water was used by gathering heads. The plaintiff seems to have had usually a sufficiency of water at his mill until 1850, when the defendant erected a saw-mill, on the same race, below his oil-mill; and constructed a new dam, below and near the old one. Overshot wheels had been previously used in the plaintiff's and defendant's mills, but the wheel used in the saw-mill was of the kind called flutter-wheels, and required about three or four times as much water as the former kind. Since the erection |