Patrick O'Riley, Respondent, v. Nelson McChesney, Appellant

Patrick O’Riley, Respondent, v. Nelson McChesney, Appellant. (Argued May 22, 1872; decided May 28, 1872.) Plaintiff was the owner of a grist-mill upon a creek in Rensselaer county; defendant owned a flax-mill upon the same creek, above plaintiff’s mill. He threw the refuse flax or shives into the stream, which formed a bar in plaintiff’s dam. Held, that the question whether this was a reasonable and ordinary use of the water was a question of fact for the jury. The top of the bar formed was lower than the bottom or apron of plaintiff’s flume. Defendant asked the court to charge that plaintiff' had, therefore, sustained no damage; this was refused. Held, no error; that plaintiff was entitled to have his pond clear so that he could lower his flume. Yarious other questions were disposed of, upon thé ground of the insufficiency of the exceptions. John H. Reynolds for the appellant. W. A. Beach for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur; Peokham, J., not sitting. Judgment affirmed, with costs.