¶1It is quite clear, from the facts stated in this case, that the plaintiff’s land has been wrongfully flowed ; and the only question for consideration is, whether the defendant is to be holden responsible for it.
¶2This depends on the effect of the acts done by him. Did those acts in any manner occasion the injury complained of ? The defendant contends that they did not, and that he has done nothing from which any injury to the plaintiff would necessarily result. What were those acts ?
¶3It appears that a mill and dam, owned by Caleb Stark, senior, in Dunbarton, was out of repair in 1834, and that the defendant, as the servant of Stark, employed hands, and in part superintended the erection of a new dam on the site of the old one : and that, after the completion of the dam, he leased the mill in the name, and as the agent and attorney of Stark, to one Nathan Gutterson, from year to year.
¶4There can be no doubt that Stark had a right to build a dam on his own land, of such model and dimensions as he pleased, unless it was so constructed as necessarily to affect the right of his neighbors by overflowing the land above, or by obstructing improperly the passage of water to the land below.
¶5If it was a permanent obstruction, without waste-gates, or any other means by which the water might be regulated under the control of its owner, so as to prevent injuries to other land owners, it might perhaps render all concerned in its construction liable ; but nothing of that kind is pretended in this case. The new dam was of the same height as the former one, and varied from it only in being tighter. It was constructed for the purpose of turning ordinary mill machinery; and, for aught that appears, the owner had full command and control of the water, by the usual waste gates and other means for its regulation.
¶6*336The mere erection of the dam did no injury. It was its management after its erection of which the plaintiff only could rightfully complain.
¶7We infer from the case that the proprietor of the mills was restricted as to flowage only during a portion of the year. If so, it was only necessary that the water should be properly drawn down during that portion of the year in which his right was limited in this respect. At all events, it is the neglect of the proper control and management of the water, and keeping it within its legal limits, that prejudices the plaintiff, and not the erection of the dam.
¶8The case finds that the defendant had no control or management of the water, but merely leased the mills, from year to year, in the name of Caleb Stark, senior, and as his agent and attorney, and for his sole benefit; and that he made no agreement respecting the height of the water, or gave any directions in relation to it.
¶9It will hardly be pretended that the lessor of the mills would be liable for the mismanagement of the water by the lessee. It is quite clear that his mere agent, or attorney, for executing the lease, could not be so holden. Those only can be rendered liable, under the circumstances of this case, who were so managing and controlling the water as to cause the injury. The case of Hill vs. Caverly & als., 7 N. H. Rep. 215, has an important bearing on the point in question; and, as far as it is applicable, confirms the views of the court as now entertained. No wrongful act is shown by the defendant. The verdict must, therefore, be set aside, and the case transferred for a new trial.
¶10New trial granted.