
    Joseph Cooper v. Thomas Hall.
    Where, hy erecting a dam the water is flowed back in the bed of a stream, and raised against the land of an adjoining proprietor, no action lies; unless some actual injury is sustained.
    This cause was reserved in the county of Warren, upon a motion for a new trial.
    It was an action on the case for a nuisance.
    The declaration contains two counts: The first count alleges that the plaintiff, on May 1,1829, was, and for a long period before that time had been, the owner of a certain tract of land in the county of Warren, and between the Miami rivers, and that upon *Jan--nary 1, 1830, ho was .possessed, and still is possessed, of a certain ancient water-mill, over and upon a certain river or water-course, commonly called the Little Miami river, in the same county of Warren, and that he had, and of right ought to have, the free current, course, use, and benefit oí the water of said river, running and flowing from his said mill down the said river, without the same being penned back upon the said mill or the wheels thereof, to the obstruction of his said mill, and that defendant, on September 1, 1830, erected a dam in and across said river, below the mill of the plaintiff, and upon the land of the defendant; by means whereof, the water was set back upon the mill, mill-wheels, and tail-race of the said plaintiff, so as to obstruct the operation of his said mill, to his great damage.
    In the second count the injury complained of was that, in consequence of the erection of the dam, the water of the river was retarded in its course, and heightened in the bed of the river.
    To this declaration the general issue plea of not guilty was filed.
    
      Upon the trial of the cause, much testimony was introduced.; some of which was contradictory. The weight of evidence, however, seemed to be, that although the water was, in consequence-of the dam erected by the defendant, somewhat heightened in the channel of the river, opposite to a part of the plaintiff’s land; yet it was not caused to flow back upon the plaintiff’s mill or mill-wheels. '
    The court charged the jury that the backing of the water in the-channel of the river upon that part of it which passed along the land of the plaintiff, was not actionable, unless productive of real' or substantial injury.
    A verdict was returned for the defendant. Whereupon the counsel for the plaintiff moved for a new trial, on the ground that-the court mistook the law in the charge to the jury.
    Corwin and Ross, for plaintiff.
    A. H. Dunlevey, for defendant.
   *Hitchcock, J.,

delivered the opinion of the court:

It is matter of regret with the court that this cause should have-been submitted without argument, as we consider the question involved not only important, but difficult of solution. In every case we are anxious to administer justice according to strict law; and in no class of cases would we be more scrupulously exact than in those which arise between adjoining riparian proprietors. Water power, for propelling machinery, is not abundant in Ohio; and the wants oí the public require that what there is, should be used to the best advantage. Still it is the duty of the court to see that no one, in an attempt to use or improve that which is his own, shall presume to interfere with the rights of his neighbor. Eor any injury done to the person or property of another, where the injury is immediate, upon the commission of an unlawful act, the. person injured may have an action ; and this, although the injury complained of is ideal, not real or substantial. Every entry upon the land of another, without right, is unlawful, and for such entry, the owner of the soil may have trespass, and shall recover damages, if for 'nothing else, for the treading down his grass. The-damages may be merely nominal, but inasmuch as the rights of the person trespassed upon have been violated; and this, too, by ■an unlawful act, his right of action is complete. So, too, a person assaulted, although he has sustained no actual, or rather no real, ■substantial injury, may have his action. These principles are too well settled to be controverted. And they are so settled, not only that the absolute rights of a plaintiff may be secured, but that a defendant who has attempted, unlawfully, to violate those rights may be punished.

But when the act complained of is itself lawful, a different rule prevails. It is only when some actual injury is done that a right of action ensues. Every man has a right to use his own as to himself seems proper; but he must be careful so to use it that no injury is done to another. ’ Sic utere tuo ut alienum non abutere, is a maxim of universal application. Here we have the distinction between the action of trespass, properly so called, and the action of trespass on the case. *The action of trespass may be sustained where the injury complained of is immediate upon the commission of some unlawful act; trespass on the case where the injury is consequent upon the commission of an act in itself lawful. In the latter case, however, the injury must be real and .substantial.

In the case before the court, it can not be pretended that the act •of the defendant in erecting his dam, was unlawful. Nor is the injury. complained of, immediate upon the commission of that act. It ■is consequential. Under these circumstances the action is well conceived. It is trespass on the case for a nuisance.

What, then, are we to understand by the term nuisance ? Perhaps it is as well defined in 3 Petersdorff’s Com. Law, 550, as in any of. the books. It is there said that “ the term nuisance signifies anything that causes hurt, inconvenience, annoyance, or damage.” If a thing complained of, causes neither of these, it is difficult to discover upon what principles it can be called a nuisance. But if it causes cither in the least degree, the person creating it' must be answerable for consequences. No matter how small the damage, the person sustaining it will have a right of action. But there must have been some damage in fact, not merely in imagination. These were the considerations which influenced the court in the charge to the >ry-

A similar principle is held by the Supreme Court of the State of New York. 3 Caine, 307. In that case, however, the court go much further than is necessary to justify the charge in the case now before us. Every riparian proprietor of land has a right to the use^ of the water flowing in the river, so long as it flows adjacent to his-land. Rut he must so use it as not to injure an adjoining proprietor, either above or below him. For any such injury he will be answerable. But to subject him to an action, the injury must be-material, substantial. Such is the principle as laid down by Chancellor Kent, in his Commentaries (vol. 3, pp. 53, 54). And it is a. principle consistent with reason and common sense. It may be difficult, in some cases, to ascertain whether the injury be material;, but it is a question proper for the consideration of a jury.

*There is another consideration which it may be proper to-mention. The Little Miami is by statute declared to be a navigable river. Although in such case this court have decided, Gavit’s Adm’rs v. Chambers, 3 Ohio, 495, that the adjoining proprietor owns, for certain purposes, to the center of the river; yet it would seem, to be absurd that such proprietor should have an action against his neighbor, when that neighbor has done him no other injury than to raise the water in some small degree within the banks of the river, without doing him any actual damage.

Upon the whole, a majority of the court are of opinion that there was nothing erroneous in the charge of the court to the jury; the motion for a new trial must be therefore overruled, and judgment entered upon the verdict.  