PARTIALLY DISSENTING OPINION OP
PREAR, J.I incline to the opinion that the facts in this case are such as to call for an injunction of some sold, but there is such uncertainty in regard to a number of points involved that it will perhaps be more in the interests of justice not to conclude either party at present, but to dismiss the bill without prejudice.
I need not now enlarge upon the facts or law as they appear to me,- or state in detail wherein my views differ from those of the Chief Justice.
I should, however, state that I cannot agree that the dismissal of the bill without prejudice should be coupled with an order for the opening of the gates of the dam by the defendants on notice from the plaintiffs at certain seasons. The chief question that was raised upon this point related to the necessary depth of drains required for the proper cultivation of rice upon plaintiffs’ land, and on this question there was no satisfactory evidence. But it seems to me the chief question that should have been *314raised was, wbat were tbe plaintiffs’ rights, not present needs, as to drainage? They did not attempt to show a prescriptive right to deep drainage, and by their own evidence, their prescriptive right, if any, to surface drainage is not interfered with. If they have a prescriptive right to deep drainage, or if they have a riparian right to such drainage, then I do not see why the defendants should be allowed to infringe upon that right at all. In other words, the plaintiffs’ right, whatever else it may be, appears to be a continuous right; if it is not infringed upon, no injunction at all should issue; if it is infringed upon, the injunction should be continuous. The court should not permit one person to take or use the property of another against his consent, even though the latter for the time being may not need to use it himself, especially when such taking or user might by long continuance ripen into an adverse right.
If defendants are willing to open the gates at plaintiffs’ request, or to do other things which might be suggested, they are at liberty to do so, but I do not see how the court can apportion property among the parties according to their present needs and without regard to their rights.