Mmnun v. wsrrimn. 51
about seven feet high across Little Pudding river, whereby its waters
"are raised and thrown over its banks, flooding a scope of country,"
including said lands, "of about five miles long and from one-half to
three-quarters of a mile wide, and rendering the same utterly worth-
less;" that if said dam was removed, and said waters "allowed to flow
in their natural channel," said "lands could be drained and re-
claimed," and "made valuable for hay and pasturage;" that the only
practical method of draining said lands is through the channel of the
Little Pudding river, and so long as said dam remains “as it now is"
they cannot be reclaimed, and the plaintiffs cannot perfect their title
to the same; and that, although said dam has been adjudged a nui-
sance by the supreme court of the state, and the defendant has been
requested by the plaintiffs to remove the same, he still continues to
maintain it, "to the great nuisance of plaintiHs’ said lands."
By his answer the defendant first simply denies seriatim the allega-
tions of the bill, except the payment to the commissioners, and his
own ownership of the Parkersville mills, and then proceeds to answer
them in detail. And, jirst, he alleges that prior to 1850 William
Parker took up and settled on donation No. 49, containing 640 acres,
under the donation act of September 27, 1850, and on April 28, 1875,
a patent was issued therefor,-—the cast half to his widow, and the west
one to his heirs at law; that the southern part of the western bound-
ary of said donation abuts on the north-eastern end of Lake La Biche,
(Labish,) and Little Pudding river enters said donation through said
part of said boundary, and thence flows across the same, where it has
from time immemorial; that in 1850 said Parker erected a dam about
six feet high across said river, near where it enters said donation,
whereby its waters were raised and set back on said lake, which is an
expansion of the river, and constructed a race therefrom on said dona-
tion about 80 yards long, wherein to conduct the water of said river for
manufacturing purposes, and built a saw-mill at the lower end thereof;
and that in 1852 he also built a grist-mill near the same point, which
was, and ever since has been, run by water flowing through said race;
that such dam remains where and as it was first erected, and the wa-
ter continues to flow through said race as it has since 1850; that said
dam, race, and mills are all on the west half of said donation, of
which the defendant is the owner, together with the land on which ·
they are situate, and all the water-power and privileges thereunto ap-
pertaining, and is now profitably engaged in running said mills by
means of the wafer flowing through said race; that said mill prop-
erty, with the water-power and privilege aforesaid, is worth $12,000,
but if said dam is removed, and the water diverted therefrom, it will
be of little value, and the defendant will be damaged thereby not less
than $10,000.
The answer then avers: (1) That the United States surveys were
extended over these lands in 1852, including the usual subdivisions;
that the alleged listing and locating of said lands is illegal and void,