It appears from the case, as I understand it, that the defendants were in possession of some portion of the shores of the pond adjoining the highway, and also of the dam situated in the highway. Such possession is prima facie evidence of ownership in fee of the land adjoining the highway, and also of ownership in fee of the dam, subject to the easement of the public in the highway. Until, therefore, something is shown to destroy the effect of this evidence, the defendants are to be taken to be the owners in fee of the dam by which they have flowed the plaintiff's land; and this seems a sufficient answer to the objection, that the defendants are not sufficiently owners of the dam to acquire a right by possession.
The case of Borden v. Vincent, 24 Pick. 301, is sufficient authority to show that the instructions complained of were right.
In regard to the evidence of Marshall, the question is, whether his statement that he claimed the right to flow was relevant to the matter in issue. It appears to me to be directly in contradiction to the testimony of Dolloff. The testimony of Dolloff tended to show that the defendants did not claim the right to flow to the height of the present *Page 448 dam. The point in issue was not whether Marshall had made certain statements from which an inference could be made that the defendants did not claim, but whether the inference sought to be made was true. The evidence of Marshall was exactly in opposition to this. The testimony of Dolloff was, not that the defendants had not made public claim, but that they did not claim, and it was proper to contradict this by the testimony of Marshall.
LADD, J., concurred.
Exceptions overruled, and judgment on the verdict.