¶1The appellants moved for a rehearing.
¶2It is claimed, on the motion for a rehearing, that it does not appear that Mrs. Smith, or her trustee, ever, in any way, directed, sanctioned or approved of the erection or maintenance of the dam; and therefore it is insisted that they are under no liability in respect to it. It seems to us that this position is clearly untenable in view of the pleadings. The complaint alleges that since July, 1862, the' defendants have wrongfully and unlawfully kept up and maintained the dam, and that they still wrongfully maintain it. Now there is no *38disclaimer on tbe part of Mrs. Smith, nor on tbe part of tbe trustee, Mead, of any interest in tbe dam. They answer jointly with A. Hyatt Smith, only denying tbe allegation that tbe dam is wrongfully maintained, and, in effect, claiming that tbey bave tbe right to maintain it as the grantees and assigns of Smith. And their prayer for relief in the amendment to the answer is, that it be adjudged by the court that each “ of them, their grantees, assigns, successors, executors, and administrators, may bave the right to forever maintain the said dam and water power.” How can it be said, in view of these matters, and the allegations referred to in the opinion, that there is nothing to show that either Mrs. Smith or her trustee has sanctioned or approved of the erection or maintenance of the dam ; that they do not seek to have the benefit of it; and that they are not responsible for the injury caused by its continuance ? It is said that Mrs. Smith has no interest or estate in the lands on which the dam is erected, but that the whole estate is vested in the trustee. Why, then, did she not disclaim, and say that she had no interest in the subject matter of the litigation? We do not know the nature of the trust created by the conveyance of the legal title to Mead, the trustee. We have no information upon that subject. All we know is, that both Mrs. Smith and the trustee are made defendants to the action, and, with their codefendant, are charged with the responsibility of keeping up the dam. This they do not deny, but practically admit, and ask the court to adjudge that they have the right thus to maintain the dam and water power.
¶3The court charged that the defendants were not liable for injuries occasioned only by some extraordinary flood, unusual and unexpected; and this stated the rule of law sufficiently favorably for the defendants. There was no error in refusing the request upon that point.
¶4The other points made on the motion for a rehearing are sufficiently considered in the opinion, or are not of such importance as to require special notice.
¶5*39By the Court. — The motion for a rehearing is denied.