
    Luke Thayer vs. James Brooks.
    An action may be maintained in Ohio, to recover damages for an injury to property in Ohio, occasioned by the diversion of water, though the act which occasioned the diversion may have been committed in Pennsylvania.
    The rule of damages in an action for a nuisance, is the injury actually sustained at the commencement of the suit.
    Whether an action will lie for draining a swamp, for the purposes of cultivation, thereby diminishing the volume of water which had previously run past, and supplied a mill with water; quere.
    This is a Writ or Error to the Court of Common Pleas of Ashtabula County.
    The original action was Case, for nuisance in diverting- water from the mill of the defendant in error. The plea was not guilty. The jury returned a verdict for the plaintiff, upon which judgment was rendered, to reverse which this writ was brought. Pending the trial the following bill of exceptions was taken:
    On the trial of this cause the plaintiff called Caleb Hayward who gave testimony tending to prove the plaintiff’s possession of the mill described in the declaration, and that said mill had been driven in part by a stream of water flowing from a swamp situate in the State of Pennsylvania where defendant resided, and that said swamp was situate in part on a farm in possession of defendant, within that State. The plaintiff then inquired of the witness whether the defendant had cut a ditch across his said farm situate in Pennsylvania, by which the water was diverted from plaintiff’s mill. To this question and the answer thereto the defendant objected that this Court could not hold the defendant responsible before the tribunals of this State for any act done upon his own lands situate within the State of Pennsylvania; which objection was overruled by the Court and the testimony was admitted; to which decision the defendant excepted.
    During the further progress of the trial, the plaintiff, among other evidence, gave testimony tending to prove that the mill mentioned in his declaration was .situated upon a stream having a part of its source in a swamp of some two hundred and fifty acres, situated in the State of Pennsylvia, and partly upon the lands of the defendant. That defendant had cut a ditch across the sand ridge lying north of said swamp through which much of the water collecting in said swamp flowed, and thus prevented a portion of the water from finding its way to the plaintiff’s mill, and through his land as it had been accustomed to do, and that his mill and land as possessing a valuable privilege of water power, was diminished in value by reason of sqch diversion of water by the defendant.
    The defendant then gave testimony tending to prove that plaintiff’s mill had ceased to do business before the defendant had dug said ditch and had become useless from the rotting of its timbers and settling of some parts of the frame, and the failure of the dam, and that at no time during the period mentioned in the declaration could said mill have been useful had the whole water of said swamp flowed into said stream.
    The defendant also gave testimony tending to prove that he could not drain his lands in any other direction than that which he had done, without trespassing upon the lands of other men. That he had made efforts and expended large sums of money to drain said lands towards the stream on which the plaintiff’s mill is situated, but such efforts had failed to effect the object. He also gave testimony tending'to prove that a portion of the water collecting in said swamp flowed east into another stream, and a part filtered through the sand ridge lying north of the said swamp, and a portion found its way into the stream that drove the plaintiff’s mill. That in digging said ditch he was actuated solely by a desire to reduce his swamp lands to cultivation, and that such object had been effected, and his swamp lands rendered productive.
    The defendant then requested the Court to instruct the jury that they ought not to find damages against defendant for diverting water from plaintiff’s mill if said mill had become use.less prior to defendants diverting said water, and had remained in that situation during the whole time for which damages were claimed in said declaration.
    But the Court refused such instruction, and informed the jury that they were at liberty to give such damages as they believed the plaintiff had sustained by the mill-site having been diminished in value in consequence of the diversion of said water.
    The defendant further requested the Court to'instruct the jury that he (defendant) had a right to drain his swamp lands, for the purpose of cultivation, and that such a right would be paramount to the plaintiff’s claim for the water to supply his mill. And if defendant were unable to drain said swamp into the stream which drove the plaintiff’s mill, without trespassing upon the lands of other people, he would be at liberty to drain them in such direction across his own lands as was necessary t re¿uce sa¡d swamp to a state of cultivation. But the Court refused such instruction and informed the jury that the defendant, in such case, would have no right to drain such lands in a direction that should prejudice the rights and privileges of plaintiff.
    The defendant asked the Court further to instruct the jury, that the owner of a mill gains no exclusive right to water standing in a marsh or swamp, which may filter through the earth into the stream that drives his mill, over the proprietor of the soil who wishes to drain it for cultivation. But the Court refused such instruction. To each of which decisions the defendant excepted, and filed his bill of exceptions, which is sealed by the Court in order that it may be made a part of the record in said cause.
    The errors assigned are in substance, that the Court erred in permitting plaintiff to give in evidence acts done by defendant on his own soil in Pennsylvania, in refusing to give the instructions asked for, and in those actually given.
    
      Giddings Randall, for Plaintiff in Error.
    
      Wilder, Ranney, Simonds and Cadwell, for Defendant.
   Birohard, C. J.

The error first assigned, presents for our consideration the question whether case for nuisance can be maintained in this State, the property injured lying wholly within the jurisdiction of the Courts of the State, but where the acts causing the injury complained of were done wholly without the jurisdiction, and in another State. The actions of trespass and trespass on the case for injuries to land, are local and in all cases where the act done and the injury sustained are wholly in a foreign jurisdiction, the place of the injury is the place of the trial. This doctrine is universally recognized as a rule of the common law; Watt v. Kinney, 23 Wendall, 484; 4 T. R. 503. It was sustained by Chief Justice Marshall after a full

. examination in Livingston v. Jefferson, 4 Hall, 78. The action in that case was for a trespass upon lands in New and was brought in Virginia. It was dismissed for want of jurisdiction. Judge Story affirms the doctrine in his conflict of laws, sec. 554. Real actions must be brought in the forum rei sitae; and mixed actions are properly referrible to the same jurisdiction.” The position has been presented by plaintiff’s counsel as conclusive of the case upon the first assignment of error. We have not so considered the law. The act was done in Pennsylvania, the injury which was occasioned by that act, was sustained in Ohio. In such a case it is believed the suit would well lie in either State. When an injury has been caused by an act done in one county, to land, &c., situated in another, the venue may be laid in either; ” 1 Chitty PI. 299, and cases referred to.

Our next inquiry is, whether the Court erred in refusing the instructions requested by plaintiff, and the instructions given adversely thereto. The injury complained of in the declaration is, that the mill was rendered less useful for want of the water which had been wrongfully diverted, and became much injured and deteriorated in value. The Court instructed the jury that the owner of the mill might recover for the injury sustained by the diminution in value of the mill-site, consequent upon the diversion of the water. This was going too far. Supposing the party liable at all, he was only liable, under any -form of declaration, for the damages actually sustained prior to the commencement of the suit. For the permanent injury to the realty, or rather the prospective injury, the party had made no claim in his declaration. He could not legally recover damages which he had not claimed. His recovery should be according to his proof and allegations. Under the charge as given, a jury would have been justified in finding damages equal to all the injury the premises would ever sustain, supposing the nuisance were to continue forever, which would be clearly wrong. For this error the judgment must be reversed.

The remaining assignments raise-a question of considerable ’ interest', and .one upon which we are not willing to commit ourselves without a full investigation, aided by counsel.

It is this: How far can one acquire a right to the water accumulating in the swamp lands of another, and at what point may he interfere to prevent the owner from draining and improving such lands ?. The instructions asked, presuppose that the facts of the case were such that the jury might have found that the diversion of water complained of, was of such only as filtered through a bank into the stream passing the mill of defendant in error, and that the act of diversion, the digging of ditches, &c., were wholly on the land of the plaintiff, done under a claim of right,- and for the laudable purpose of improving the quality of his farm. He claimed that he had a legal right to do the act, and requested the Court so to instruct the jury. The question is, was he bound to surrender up the use of his land in order that the defendant might have the use of the water that would in a state of nature collect upon it and filter into the defendant’s mill stream ? In cases when waters have collected into a running stream, the rights of the riparion owner are well settled. No one above or below him can use or divert it to his prejudice. . The owner of land through which the stream flows must so use and apply the water, as to work no material injury to his neighbor below him who has an equal right to the use of the water; 3 Kent’s Com. 354. But the draining of a swamp upon one’s own land, whereby filtration into a running stream is destroyed and the volume of water thus diminished, may perhaps present a case to which the maxim “de minimis non curat lex” is strictly applicable. With these suggestions we leave the point to await the time when its determination shall become necessary to the decision of a cause.  