Neale v. Seeley , 1866 N.Y. App. Div. LEXIS 129 ( 1866 )

By the Court, Welles, J.

The evidence does not show when the new roof and eaves-trough were put upon the defendant’s house. If it was more than twenty years before the action was commenced, and there has been no material change in the meantime, to the injury of the plaintiff,' the defendant has acquired a prescriptive right to continue them in the same way and manner as when they were first put there; and she would be at liberty to change the form, provided the object would be equally .well secured, without injury to the interests of the plaintiff. But this right of prescription was an affirmative defense, which it was incumbent upon the defendant to prove. Ho evidence appears to háve been given as to the time when the change was made, and there can be no intendment in the defendant’s favor, on that question.

The testimony tended to show that the water from the roof of the defendant’s house did not run upon the plaintiff’s premises until after the new tin eaves-trough was constructed and put up, but was carried off by the old one ; and that since that time it did run over and upon the plaintiff’s premises, and injured his land. These questions should therefore have been submitted to the jury.

It seems to me that the learned justice fell into an error in nonsuiting the plaintiff, and that a new trial should be granted.

Ordered accordingly.

Welles, E. Darwin Smith and Johnson, Justices.]