erly left to the jury to find, whether the defendants, claiming in the right of Clark, had by their diversion of the water for a valuable and highly beneficial use, caused any actual or perceptible damage, and if not, to find for the defendants. It is very clear, that here is no complaint of the total diversion of the stream from the plaintiff's land; no such ground of complaint is set forth, or relied on. The bed of the stream and the stream itself, remains and passes through the plaintiff's land as it did before. The gravamen of the complaint is, not for diverting the stream itself, but for abstracting a part of the water of the stream This is a right which each proprietor has, if exercised within a reasonable limit. The proper question therefore was, whether in the mode of taking, in the quantity taken, and the purpose for which it was taken, there was a reasonable and justifiable use of the water by Clark The use being lawful and beneficial, it must be deemed reasonable, and not an infringement of the right of the plaintiff, if it did no actual and perceptible damage to the plaintiff and therefore we think that question of fact was rightly left to the jury, who must have found that it did him no such damage.

We consider the other direction correct also, as we understand it. The question was not, if the defendants had caused a damage to the plaintiff, amounting in law to a disturbance of his right, for which an action would lie, whether it would be barred by an advantage of equal value, conferred in nature of a set-off; but whether the improvements of Clark upon his meadow, taken together as a whole, including the dam and ditches as parts of one and the same improvement, any damage was done to the plaintiff; and this we think was correctly so left.

It may perhaps be proper to guard against misconstruction, in considering what are the general rights and duties of persons owning lands, bounding on running streams, by the general rules of law and for general purposes, that some alterations of these rules, may be effected in Massachusetts, by the Acts of legislation on that subject, in respect to mills, and the construction which has been judicially put upon such legislative Acts. This system originated with the Provincial Act, 13 Anne, passed in 1714, Ancient Laws and Charters, 404. This Act by its operation. necessarily secures, to some extent, advantages to the prior occupant of a stream, by a dam erected to work a mill. Bigelow v. Newell, 10 Pick. 348; Bemis v. Upham, 13 Pick. 167; Baird v. Wells, 22 Pick.

312.

It is not necessary, however, now to go into this subject, but merely to say that the rights to streams of running water, upon which the present question turns, are not dependent upon, or affected by, the Mill Acts. Exceptions overruled

McCOY v. DANLEY.

SUPREME COURT OF PENNSYLVANIA. 1852.

[Reported 20 Pa. 85.]

ERROR to the Common Pleas of Washington county.

This was an action brought to August Term, 1847, by Daniel Mc Coy v. William Danley. It was an action on the case for the continuance of a nuisance. After the suit was brought, William Danley died, and his administrators were substituted.

To August Term, 1844, Daniel McCoy brought his action against the defendant, William Danley, to recover damages for an injury done to the plaintiff's land by back water from a mill-dam erected on defendant's premises. In that suit the plaintiff recovered a verdict and judgment.

The defendant having neglected and refused to abate the nuisance, the plaintiff brought the present suit, in which he declared for the continuance of the nuisance, as suggested by Rogers, J., in the case of Smith v. Elliott, 9 Barr, 345; and gave in evidence the verdict and judgment in the former action.

On the part of the plaintiff it was proved that, no change had been made in the dam since the former trial.

After various offers made on part of plaintiff to prove injury to the plaintiff's land in consequence of the erection of the dam, during the ordinary rises in the stream, which were overruled, the court deciding that the evidence should be limited to the injury sustained at the ordinary stage of the stream, evidence was given that if the dam was removed, the plaintiff's land would be dry and valuable; that the swelling in the stream was periodical; that in the spring of the year the plaintiff's land was covered with water for two weeks; and that most of the damage sustained arose from the common, ordinary, and expected floods.

On the part of the plaintiff the court was requested to charge the jury:

1. That the verdict and judgment in the former suit were conclusive of the plaintiff's right to recover, and all the plaintiff is required to do is, to give in evidence the record of the former recovery, and prove that the nuisance remains in the same, or in a worse situation than before. The court charged in the affirmative; reference to 9 Barr, 346.

2. That all streams are subject to periodical and expected floods, which occur at fixed times and seasons, which may be calculated upon with reasonable certainty; and for all damage occasioned by ordinary, common, and expected floods, the defendant is liable. That if the

jury are satisfied, from the evidence, that regular and periodical freshets or floods occur at fixed times and seasons, in the stream in which the defendants' dam is built, they are bound to allow the plaintiff for all damage occasioned by the dam during those ordinary, common, and expected floods.

Answer. It is within the observation of all, that streams in this 'country are subject to periodical and expected floods, which occur generally at particular seasons every year- the nature and extent of these floods are well understood. Again, there are what may be called extraordinary floods, not occurring at stated periods, but happening once, perhaps, in the course of several years. We are not asked then

to charge you that the defendants are liable in damages for injuries sustained for extraordinary floods, but for the usual ordinary and expected floods which occur in the course of every year. This we cannot do. The expression of the Supreme Court in the Monongahela Navigation Co. v. Coon, 6 Barr, 383, is too plain and explicit for doubt. The rule there stated is, that a riparian owner is entitled "to swell water in the channel of the stream in its natural state up to his neighbor's line, and that he is not answerable for damage done by high water, however it may have been increased by the obstruction below." We say to you that the defendants are only liable for injury done by the swelling of the water at its ordinary stage, and we define an ordinary stage to be the situation of the stream for the longest period exclusive of what might be called the dry season. Then, whatever injury the plaintiff has sustained by the swelling of the water at its usual and ordinary state, he is entitled to recover

3. That, after the former verdict and judgment, it was the defendant's duty to abate the nuisance, and that his continuance of it is to be regarded as an aggravation of the injury, and as enlarging the damages. That the plaintiff is entitled to recover exemplary damages in this suit. That the jury are bound to give such damages as will punish the defendant and compel him to abate the nuisance.

Answer. Damages are either nominal, compensatory, exemplary, or vindictive. We are asked to charge you that the plaintiff is entitled, in this case, to recover exemplary damages, which are such as will not only fully compensate the plaintiff, but punish the defendants, and thus compel them to abate the nuisance. The jury are at liberty, in a case of this nature (which is nothing more than an inquest to ascertain damages), to give such damages as would compel the defendants to abate the nuisance, but they are not bound to do so; cases might occur where it would be highly unjust to compel a party defendant to pull down the erection which had been declared a nuisance, as when the continued injury to the party complaining is but insignificant, and the erection of great value. There it would be wrong to give exemplary damages. Again, the erection might be of no value, and the injury occasioned and continued great. In a case like this the damages should be such as would compel the party to abate the nuisance.

Error was assigned, in the first four assignments, to the rejection of the evidence; and in the fifth, to the refusal to charge as requested in the second point. In the sixth, in refusing to charge as requested in the third point.

Acheson and Wilson, were for plaintiffs in error.

Montgomery, for defendants in error.

The opinion of the court was delivered by

BLACK, C. J. This was an action on the case for erecting a dam by which the water of the

stream was penned back so as to overflow the plaintiff's land above. Evidence was offered to show the injury which had been caused by the structure at times of ordinary and natural rises in the stream; at regular and periodical rises; at times of high water occurring at the usual flood seasons; and at times of ordinary and common freshets. All this was rejected, and the court held in the charge that there could be no recovery except for damage done by swelling back the water at its ordinary stage, and this was defined to be that situation in which it remains longest, excluding the dry season. We find no authority for this rule. One objection to it is the extreme difficulty of its application. In this country there is no dry season, properly so called. We have periods of drought which come irregularly and at all times of the year. The streams rise immediately after a rain or the melting of the snows, and the fall begins as soon as the rise ceases. That they ever remain in one situation for a perceptible length of time would be hard to prove. If they do, it would require an observation so close and so constant to know in what situation they remain longest, that no person of ordinary habits could be expected to tell it. No two witnesses would be likely to agree even upon their average height during a given time.

But suppose the ordinary situation of a stream according to this definition of it could be ascertained with tolerable accuracy, we think a dam which backs the water on the land of the proprietor above during every spell of wet weather, is something more than damnum absque injuria. If not, a man, whose farm consists of a low creek bottom, is at the mercy of his neighbor below. His trees may be killed, his crops destroyed, his springs drowned, his house rendered uninhabitable, and his land made worthless, not only while the overflow lasts, but by the pools of stagnant water left standing on it afterwards. And all this must be the necessary consequence, not of great floods, which, like other inevitable calamities, are to be borne without complaint, but of every ordinary freshet caused by the usual rains which are expected with as much confidence as we look for the return of summer and winter. The law would be very defective if it did not protect men from wrongs like these in rainy as well as in dry seasons; and since every year brings its alternations of high water and low, a person who erects a dam is bound to foresee the one as much as the other. It often happens that small mills for grinding, sawing, or other purposes, are erected on streams too weak to turn them except at high water. Sup

pose two such mills are on the same creek, the owner of the lower one, according to the defendant's doctrine, can say to the other, "You may use your machinery, if you can, when there is not water enough to drive it; but when the rise comes, I claim the right, and will exercise it, to pen the water back upon you and stop your wheel." If one party may do this with impunity, and the other must submit without a remedy, what becomes of the maxim, Sic utere tuo ut alienum non lædas?

The opinion in the case of the Monongahela Navigation Company v. Coon, 6 Barr, 379, which seems to have misled the Court of Common Pleas, does not go the whole length they seem to have thought. The judge who delivered that opinion speaks throughout, not of the usual high water, but of floods which occur on extraordinary occasions. Besides, the point was not before him at all; and he was not required to speak with precision. The only point decided there which makes that case akin to this one, was, that under the Act of Assembly the defendants were responsible for all damage caused by their dam under all circumstances. The remarks about the rights and duties of riparian proprietors differently situated were but obiter dicta; and there is nothing in them from which we infer that the court then considered a common freshet, such as may probably happen any month in the year, to be an extraordinary occasion, of which one who built a dam was not required to calculate the effects.

But this question did arise in Bell v. McClintock, 9 Watts, 119, and it was decided, not under the Act making Oil Creek a public highway (for the Statute did not either create or change the rights of the parties), but, according to the principles of the common law, that one who erects a dam is responsible for all the injury caused by it in times of usual, ordinary, and expected freshets. A flood is another thing. It may not come for years together. When it does come, it is a visitation of Providence, and the destruction it brings with it must be borne by those on whom it happens to fall.

This was a second suit for the same injury. The first had resulted in a judgment for the plaintiff. The court properly held, that the record in the former case was decisive of the parties' rights. The plaintiff submitted, that the jury were bound to find such damages as would punish the defendant, and compel him to abate the nuisance. But this the court denied to be law in a case where the erection complained of was of great value to one party, and the injury to the other insignificant. In this we cannot concur. The usufruct of water belongs to the owners of the land through which it passes. It is property to all intents and purposes. If one uses it in such a way as to prevent another, whose right is as good as his, from using it for a similar purpose, or if he interferes in any injurious way with its natural flow through the land of his neighbor above or below him, he is taking another man's property for his own purposes, and this he can never do without a contract. He who desires to have a water-right which does not belong to him, mustbargain for it, as he would do for anything else. The law will not