Roberts v. Huggins

PER' CURIAM.

The major purpose and aspect of the ■bill in this case is to enjoin the respondent from wrongfully diverting the flow of water from its regular course on the stream originating at the spring and passing through the property of which the complainant is in rightful possession, said diversion being continuous and to the hurt of the complainant. The demurrer is addressed to the bill as a whole and construing the allegations of the bill most strongly against the pleader they show that the complainant is in the rightful possession of the premises as a licensee of the owner of the land with the right to use the waters of said stream to supply his minnow pools used in the propagation and raising of minnows for bait purposes; that the licensor is the owner of the land and the riparian rights to use the water flowing along the regular channel of said stream.

Therefore, if it be conceded that the complainant is not the owner, he is certainly the licensee, and the respondent, a wrongdoer, is without right so far as appears from the allegations of the bill to interfere with and interrupt the complainant in the use of said property. The fact that he occupies by mere license of the owner gives the respondent no right to interfere.

We are therefore of the opinion that the demurrer was erroneously sustained and a decree will be here entered overruling the demurrer and remanding the cause to -the circuit court for further proceeding. The defendant is allowed thirty days within which to' plead.

Reversed, rendered and -remanded.

BROWN, FOSTER, LAWSON and SIMPSON, JJ., concur. LIVINGSTON and STAKELY, JJ., dissent. GARDNER, C. J., not sitting.