59 Mass. 537 - Shaw v. Wells — 59 Mass. 537

John Shaw, Jr. vs. Moses D. Wells. If the owner of a mill erects a dam across the outlet of a pond, which flows into the stream on which his mill is situated, for the purpose of creating a reservoii for the use of his mill, the owner of land flowed by means of such dam cannot maintain an action at common law therefor, but must proceed in the manner provided by the mill act, (Eev. Sts. c. lift) This was an action on the case, at common law, for flowing the plaintiff’s land in Becket, by means of a dam constructed by the defendant over and across Farmington river. The trial was before the chief justice. The case having been opened, the defendant contended, that if the plaintiff had sustained any damage by means of the cause alleged, his remedy was by complaint, under the mill act, (Rev. Sts. c. 116,) and that an action at common law would not lie. It was therefore agreed, for the purpose of this question, that there is a considerable pond forming one of the sources or feeders of the Farmington river, through or out of which one portion of that river flows ; that hi order to form a reservoir for the use and supply of his mills below, the defendant raised a, dam across the outlet of the pond, which had the effect to raise the water higher, and to keep it up a greater portion of the year, than would otherwise naturally be the ■ case ; that the plaintiff is the owner of land bordering on the pond or its outlet, over which the water is flowed higher and kept up a greater portion of the year, than it would be, if the dam was not so placed there, the effect of which is to injure the plaintiff’s land and impair the value of his crops; that the defendant is the owner of mills below on. the Farmington river, provided with a dam across the river, the supply of water in which is increased in quantity and steadiness of supply, at all seasons of the year, by means of the reservoir and reservoir dam above mentioned, and by means of which the mills below are greatly benefited and improved; that the reservoir dam was erected by the defendant for the purpose of raising a better head of water, and producing a more constant and steady supply to his mills ; that on the same stream between the reservoir dam, and the defendant’s mill, there are two other mill-dams, with mills upon them, belonging to other persons; and that the defendant’s mills are about one mile below the site of the reservoir dam. Upon this statement of the plaintiff’s ease, a nonsuit was entered by consent, subject to the opinion of the whole court. J. D. Colt, for the plaintiff, argued, that the language of the revised statutes, c. 116, § 1, “ any person may erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream, that is not navigable,” &c., did not extend to this dam ; and that the case of Wolcott Woollen Manufacturing Co. v. Upham, 5 Pick. 292, was no authority in this case, having been decided on the statute of 1795, c. 74, which extended in terms to all cases, in which, “ to the working of such mill, it shall be found necessary to raise a suitable head of water, and in so doing any lands shall be flowed not belonging to the owner of such mill.” M. Wilcox, for the defendant. — By the Court. (majority) By the Court. The remedy of the plaintiff is by complaint under the statute provisions as to mills. We perceive nothing in the case, to take it out of the general rule as to the remedy. The case of Wolcott Woollen Manufacturing Co. v. Upham, 5 Pick. 292, seems to be in point. The nonsuit was proper, and is confirmed by the whole court.