PRIORITY OF OCCUPANCY.

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least possible injury to his neighbor, who has the same right. And where the owner of land through which a natural stream flows, diverts the water for the purpose of irrigation, without returning the surplus into the natural channel, whereby the owner of land below, entitled to use the water in the same manner, is deprived of his privilege, an action lies. Streams of water are intended for the use and comfort of man, and every proprietor is entitled to a reasonable use of the water, and may apply it to domestic, agricultural, and manufacturing purposes; but not so as to destroy or materially diminish, or affect the application of the water by the proprietors below on the stream. 5 Pick. 175; 12 Wend, 331.

Where several owners of mill seats on a running stream have a common and equal right to the use of the water, though no action lies against the owner of a mill above for any damage which the owner of a mill below may incidentally suffer from the reasonable use of the water by the former for his own benefit; yet the owner of the mill above has not an unlimited right to use the water as he pleases, or to stop the natural flow of the stream, so as to destroy or render useless the mills below. And if he shuts down his gate, and detains the water for an unreasonable time, or lets it out in such unusual quantities as to prevent the owner of the mill below from using it, or deprive him of a reasonable and fair participation in the benefit of the stream, he is answerable for the damage thus sustained. 17 John. 306.

The owner of an ancient mill may change the character and use of his mill at pleasure, without impairing his right to the water, if he does not thereby injure his neighbor's mill, and returus the water again to its ancient channel. 8 Greenl. 253.

The exclusive enjoyment of the use of water in a particular way for twenty years is sufficient to raise a presumption of title to such use; and it is not necessary that the water should have been used precisely in the same manner or to propel the same machinery. So after twenty years' uninterrupted enjoyment of a spring of water, an absolute right to it is gained by the occupier of the close in which it issues above ground; and the owner of an adjoining close cannot lawfully cut a drain whereby the supply of water by the spring is diminished. 3 Page R. 577; 1 Camp. 463.

A mill privilege cannot be considered as extinguished or abandoned by disuse, until such disuse, entire and complete, has continued twenty years. 7 Metc. 94.

Mere priority of occupancy of the flowing water of a river creates no right; and an adverse enjoyment of water in a stream, for any period less than twenty years, is not sufficient to establish a right by prescription. 5 N. Hamp. 231.

Where a right exists to use a certain quantity of water, a change in the mode or objects of the use, without increasing the quantity, is no violation of the right. 2 N. Hamp. 255.

STATE LAWS

RELATING TO

LANDLORD AND TENANT.

CHAPTER III.

MAINE.

CHAP. 95. SEC. 17. A widow may remain in the house of her husband, ninety days after his death, without being chargeable with rent therefor.

SEC. 19. All tenancies at will may be determined by either party, by three months' notice in writing, for that purpose given to the other party; and, when the rent, due upon such lease, is payable at periods of less than three months, the time of such notice shall be sufficient, if it be equal to the interval between the days of payment; and, in all cases of neglect or refusal to pay the rent due on a lease at will, thirty days' notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease.

SEC. 20. The preceding section shall not be construed to extend, or be applicable to the proceedings in cases of forcible entry and detainer, or the notice required in such cases. On complaint made in writing and on oath, of any unlawful or forcible entry into any lands or tenements, a summons shall be served on the tenant seven days at least, before the day set for trial, &c.

CHAP. 125. SEC. 40. When any lot, or parcel of land, or any mill privilege shall be leased for the purpose of having a house, shop, mill, or other building erected, or placed thereon, and rent is reserved in the lease, all the buildings erected as aforesaid, together with all the interest which the lessee before had, or may have in the premises, by force of such lease, shall remain liable to be attached by any such lessor, or his assignee, to secure the rent due on such lease, notwithstanding any previous transfer of property by the lessee; provided such attachment be made within six months from the time such rent becomes due.

Suits must be commenced within six years. Also, all actions for waste.

CHAP. 128. SEC. 1. Any justice of the peace in the county in which he resides shall have jurisdiction in all cases of forci

ble entry and detainer, except in a city or town where there is a municipal or police court.

SEC. 2. On complaint made to him, in writing and on oath, of any unlawful and forcible entry, into any lands or tenements, or any unlawful and forcible detainer, he shall issue his warrant, under hand and seal, directed to the sheriff or his deputy, or a constable of the town where the person charged resides, to summon him to show cause why judgment should not be rendered against him; which summons shall be served upon him by reading the same in his presence and hearing, or by delivering him a copy, or leaving it at his last and usual place of abode, seven days at least before the day set for trial.

SEC. 3. On return of such service, in case of the non-appearance and default of the party charged, or his failing to shew sufficient cause, judgment shall be rendered against him for possession of the premises, and the justice shall issue a writ of possession to remove him.

SEC. 4. Should the defendant plead not guilty to the complaint, and file a brief statement of title in himself or some other person under whom he claims the premises in question, the justice shall thereupon order him to recognize to the complainant, with sufficient sureties, in such sum as the justice shall order, to pay all intervening damages and costs, and reasonable intervening rent for the premises; and said justice shall require the complainant to recognize to the defendant, with sufficient sureties, in a reasonable sum, conditioned to enter the action at the next district court, and prosecute the same to final judgment, and pay all costs adjudged against him; and, if either party shall refuse so to recognize, said justice shall enter judgment, as in case of nonsuit or default, against the party so neglecting or refusing. Either party may appeal from the judgment of the justice, upon issue joined, to the next district court, recognizing, as aforesaid, to pay such costs as may be adjudged against him; and if the defendant shall appeal, he shall recognize to pay such reasonable intervening rent for the premises, as such justice shall adjudge, in case his judgment shall not be reversed on such appeal.

SEC. 5. Whenever a tenant, whose estate in the premises is determined, shall unlawfully refuse to quit the same, after thirty days' notice in writing, given by the lessor for that purpose, he shall be liable to the provisions of this act; provided he shall not have been in quiet possession of the premises three whole years next preceding the filing of such complaint.

SEC. 6. Every municipal and police court, now established, or which may be established, in any city or town, shall have exclusive jurisdiction of all cases of forcible entry and detainer, arising in the city or town where such court is or shall be established; and concurrent jurisdiction with justices of the peace and quorum in such cases arising in the counties in which they are or shall be respectively established,

Page 224, SEC. 1. Any lessor, or owner of any lands or tenements, may at any time determine any lease at will, or tenancy at sufferance, by giving to the tenant, or occupant, a notice in writing to quit the same at a day therein named.

SEC. 2. If any tenant, or occupant, neglects, or refuses to pay the rent due and in arrear, upon demand, seven days' notice shall be sufficient. If the rent is payable more frequently than once in three months, whether such rent is due or not due, thirty days' notice shall be sufficient, and three months' notice shall be sufficient in all cases.

SEC. 3. If any lessee shall violate the condition of any written lease, notice to quit at the end of seven days shall be sufficient and equivalent to an entry for condition broken.

SEC. 4. If any lessee shall hold over after the expiration of a definite written lease, seven days' notice shall be sufficient.

SEC. 5. Every tenancy, or occupancy, shall be deemed to be at will, and the rent payable upon demand, unless a different contract is shown.

SEC. 6. Any lessee may terminate his lease by notice in writing in the same manner as the lessor, and such notice shall have the same effect for all purposes as a notice by the lessor to the lessee.

SEC. 7. The owner or lessor of any tenement or real estate, may recover possession thereof, against any lessee or occupant, holding the same without right, after a notice to quit the same in the manner herein prescribed.

SEC. 8. A writ of summons may be issued, returnable before a justice, which shall set forth in substance, that the plaintiff is entitled to the possession of the demanded premises, and that the defendant is in possession of the same without right, after notice in writing to quit the same.

SEC. 9. Such writ shall be served seven days before the return day thereof.

SEC. 10. If the defendant shall make default, or if on trial it shall be considered by the justice that the plaintiff has sustained his complaint, judgment shall be rendered, that the plaintiff recover possession of the demanded premises and costs.

SEC. 11. A writ of possession shall be thereupon issued by said justice substantially in the form prescribed by law, in the case of like writs issued in the court of common pleas.

SEC. 12. If the plaintiff shall neglect to enter his action, or to support the same, judgment shall be rendered for the defendant for his costs.

SEC. 13. Under the general issue the defendant shall not be allowed to offer any evidence which may bring the title to the demanded premises in question.

SEC. 14. If the defendant shall plead any plea which may bring in question the title to the demanded premises, he shall re

VERMONT STATUTES.

71

cognize to the plaintiff, with sufficient sureties, in such sum as the justice shall order, to enter and prosecute said action at the next court of common pleas for the county, and to pay all rent then due, or which shall become due, pending said action, and the damages and costs which may be awarded against him.

SEC. 15. If the defendant shall neglect or refuse so to recognize, judgment shall be rendered against him in the same manner as if he had refused to make answer to the suit.

SEC. 16. After the filing of such plea, and the entry of such recognizance, no further proceedings shall be had before such justice, but the action may be entered and prosecuted in the court of common pleas in the same manner as if it had originally commenced there.

SEC. 17. Any party may, within two hours after the rendition of such judgment, appeal to the next court of common pleas for the county.

SEC. 18. The plaintiff, before his appeal is allowed, shall recognize to the defendant with sufficient sureties, in such sum as the justice may order, to enter and prosecute his appeal and to pay such costs as may be awarded against him.

SEC. 19. The defendant, before his appeal is allowed, shall recognize to the plaintiff, with sufficient sureties, in such sums as the justice may order, to enter and prosecute his appeal, and to pay all rent then due, or which may become due pending such suit, and such damages and costs as may be awarded against him.

SEC. 22. Nothing in this chapter shall be construed to prevent any landlord from pursuing his legal remedy at common law. Page 243. No lease for more than seven years from the making thereof, shall be valid to hold the same against any person but the grantor and his heirs only, unless such lease be attested by two or more witnesses, acknowledged and recorded in the registry of deeds in the county in which such lands lie. Any person interested in such lease may cause the same to be recorded.

VERMONT.

CHAP. 60, SEC. 6. No lease for more than one year from the making thereof, of any lands in this state, shall be good and effectual in law, unless the deed thereof be acknowledged and recorded, &c.

SEC. 23. The assignment of any lease of lands, if the lease is for a longer term than one year, shall be by deed, signed, sealed and witnessed, acknowledged and recorded.

SEC. 13. Tenants in common of any lands may join in any action which concerns their common interest in any such lands. SEC. 14. In actions of ejectment for non-payment of rent, the plaintiff shall not be required to prove a demand of the rent in