Mitchell and Another v. Parks and Others. affirmative, but that when the name of Henry Sheplar, the remaining juror, was called, he answered that the verdict was not his, but that he consented to it, and then, in response to the question, answered "yes." And the bill of exceptions says, "that the plaintiffs began to further interrogate said Sheplar as to his consent, and the court refused to allow this, to which the plaintiffs excepted." The code provides that when the jury return into court and deliver their verdict, either party may poll them, and "If any juror dissent from the verdict, they shall again be sent out to deliberate." Here the juror did not dissent from the verdict, but in express terms assented thereto. The answer made by him indicated that it was not in accordance with his original private judgment, but that he had agreed to it and then gave it his assent. We know of no authority justifying a party in interrogating a juror as to the grounds of his assent to, or dissent from, the verdict. Besides, in the case before us, the question propounded to the juror which the court excluded is not given, and we must presume in favor of the ruling of the court below, that it was an improper one. The plaintiffs did not request that the jury should be sent back for further deliberation. Among the particular facts found by the jury, in answer to interrogatories, are the following: that the artificial channel by which the water of the spring was conducted to and upon the plaintiffs' land was constructed by Robert Hamilton, "in 1839 or 1840, at the instance of the citizens of the town of Martinsville, to rid the town of surplus water;" that the plaintiffs had not had the use of the water for twenty years without interruption; that the plaintiffs, and those under whom they claimed title to the land, first began to use the water in said stream as stock water in 1847 or 1848. These special findings are fully sustained by the evidence. It further appears from the evidence that Robert Hamil ton constructed the channel by which the water was carried upon the land now owned by the plaintiffs, under the em Mitchell and Another v. Parks and Others. ployment of the citizens of Martinsville, for the purpose of getting rid of the surplus water, which at times flowed from the spring and its channel above, into and over the town; that one Taylor, who then owned the land now belonging to the plaintiffs, gave his assent or parol license thereto, not that he desired it, or wished to use the water, but as an act of neighborly kindness, and that no use was made of the water by him or others on the land now owned by the plaintiffs until the year 1847 or 1848; that since said channel was constructed, citizens of the town had repeatedly, and whenever they desired, tapped the same, and diverted and used the water for horticultural and mechanical purposes. The court instructed the jury that "the fact that the waters of the branch in controversy have, by an artificial channel, run upon and over the lands of the plaintiffs for a period of twenty years or more, is not sufficient, under the pleadings in the case, to make out the plaintiffs' cause of action, unless the jury shall also find that there has been an actual user of said water by the plaintiffs, and those under whom they hold title, for a period of twenty years." The giving of this instruction is assigned for error. It is insisted by the appellants' counsel that if the water had flowed through the artificial channel, without interruption, upon the plaintiffs' land for a period of twenty years, that fact would establish their right thereto by prescription, without proof that they had used the water for any purpose. The argument is that if the plaintiffs' land had enjoyed the stream for twenty years, their right to its continuance became fixed and could not be disturbed. The law bearing on this question is stated by Chancellor Kent thus: "In the character of riparian proprietors, persons are entitled to the natural flow of the stream without diminution to their injury, and to them may be applied the observation of WHITLOCK, J., in Shurty v. Piggott, that a water course begins ex jure naturæ, and having taken a Mitchell and Another v. Parks and Others. course naturally, it cannot be diverted. But on the other hand the owners of artificial works may acquire rights by actual appropriation, as against the riparian proprietor, and the extent of the right is to be measured by the extent of the appropriation, and the use of the water for a period requisite to establish a conclusive presumption of right. In such a case the natural right of the riparian proprietor becomes subservient to the acquired right of the manufacturer. * * * * *The right is confined to the extent and mode of enjoyment during the twenty years. * * To render the enjoyment of any casement for twenty years a presumption juris et de jure, or conclusive evidence of right, it must have been continued, uninterrupted and adverse, that is, under a claim of right, with the implied acquiescence of the owner." 3 Kent pp. 442, 444. * * In order to raise the presumption of a grant the enjoy ment must have been adverse. As to what is, or is not, an adverse enjoyment, will depend upon the facts and circumstances of the case, which of course are to be ascertained by the jury. If the enjoyment is shown to have originated in mistake, or by favor or license, or if it was commenced and continued in any manner which does not indicate an assertion of right, the enjoyment is not adverse, and consequently the presumption is not raised. Angel on Water Courses, 2 ed. 68. See also, Washburn on Eas. & Serv. §§ 25, 26, pp. 85, 86. We think there was no error in giving the instruction. Several other exceptions were taken to instructions given, and to the refusal of the court to give certain instructions asked by the appellants, but as they related only to the rights of riparian proprietors, and the relations of such proprietors to each other, or to the nature and extent of the right acquired by prescription, after the lapse of twenty years uninterrupted enjoyment, they could not have affected the finding of the jury, that the plaintiff's had not acquired the right by prescription to the use of the water. They Yaryan and Another v. Shriner and Wife. were immaterial to the decision of the case, in the view we have taken of it, and their consideration is, therefore, rendered unnecessary. The judgment is affirmed, with costs. S. Claypool and J. V. Mitchell, for appellant. 26 364 124 551 YARYAN and Another v. SHRINER and Wife. SALES BY ASSIGNEES.-SECURITY.-Although it is the duty of an assignee APPEAL from the Union Common Pleas. RAY, J.-The appellants were the successors of one Bennett, who, on the 9th day of January, 1860, became the assignee, under an assignment made by one Hurty of his property for the benefit of his creditors. This action is brought to redeem certain real estate which had been included in the assignment. On the 13th day of February, 1858, said Hurty and wife had mortgaged the real estate to one Hollingsworth, to secure a debt of $2,000, and the debt and mortgage were subsequently assigned to the appellee. On the 16th day of April, 1860, Bennett, the assignee, sold the real estate to Mrs. Hurty, the wife of the assignor, and executed a deed to her and received the joint note of Mrs. Yaryan and Another v. Shriner and Wife. Hurty and her husband for the sum of $2,000, due January 1st, 1861, but which note was, by mistake, made payable January 1st, 1860. On the 26th day of March, 1861, the appellee obtained a decree of foreclosure of his mortgage upon the real estate, and upon the sale under the decree, on the 11th day of January, 1862, became the purchaser. To this decree the assignee was not made a party. On the 29th day of February, 1864, Hurty and wife executed a deed for said real estate to the appellants. It is insisted by the appellants that they have the right to redeem the property, and to subject it to the payment of the debts due to creditors of the assignor, because the assignee had not been made a party to the foreclosure proceeding. But at the date of the decree of foreclosure the assignee had no interest in the property in question, unless his conveyance to Mrs. Hurty was void, or a vendor's lien remained upon the property. The sale was not void. It was the duty of the assignee to require "security to be approved by him" for the purchase money, upon the sale of the property, but his neglect to require sufficient security would not avoid the sale, though it might render him liable upon his bond. The proceedings attending the sale of the property to Mrs. Hurty seem to have been regular, and in accordance with the requirements of the statute. It only remains to determine whether the receiving of the note of Mrs. Hurty for the purchase money, with her husband as security thereon, was a waiver of the vendor's lien. In the notice of the sale it was stated that security would be required for deferred payments. The assignee testifies, "that when the note was given she, Mrs. Hurty, failed to give any security but her husband." In the case of Boone et al. v. Murphy et al., 6 Blackf. 272, it was held that, "The vendor of real estate, by taking the vendee's promissory note for the purchase money, payable at a future time, with a third person as surety, waives his equitable lien on the land for such money, unless there be an express contract that the lien shall be retained." The |