Custis

This is an appeal on the part of the plaintiff from a judgment which, in the main, is in his favor, but which he seeks to have modified in one respect only. The action was brought to establish plaintiff’s right to the use of the waters of five certain springs, having their source upon lands adjoining those of the plaintiff. The complaint is in two counts, the first alleging an appropriation and adverse use of the waters of said springs for many years by the plaintiff’s predecessor in the ownership of his own lands; the second alleging that the waters of said springs flow by defined courses down to and upon the plaintiff’s land, and that his rights to said waters are riparian. The defendant’s answer consisted of specific denials of practically all the allegations of the plaintiff’s complaint except those relating to his attempted use of said waters in opposition to the plaintiff’s asserted right therein, but without any affirmative averments of any right in the defendant to the use of any part of said waters upon land of his own, and without any prayer for affirmative relief. The cause was tried upon the issues thus presented. The court found that the plaintiff was entitled to the…