
    Elizabeth M. Dixon vs. Joseph D. Eaton, administrator of Jeremiah M. Eaton.
    York.
    Decided December 11, 1878.
    
      Mills. Flowage. Variance.
    
    The allegation in a complaint for flowage, that the defendant’s intestate did erect and maintain a water mill and a dam to raise water for working it,. is not sustained by proof of a steam mill and a dam to raise water for floating logs.
    Such a case is not within the mill act. B. S., c. 92.
    On eepoet.
    Complaint for flowage, inserted in a writ of attachment.
    The land of complainant is flowed by water raised by a dam constructed across a stream by respondent’s intestate on his own land in 1872. A former dam in the same place was standing in 1853. Two former mills, both worked by water from the pond, formerly stood at or near the spot where stands the present mill, which was erected in 1852, seven or eight rods below its last predecessor. The mill now in operation is not now, and never has been, worked by water from the pond raised by the dam, but stands adjacent to the dam, and is worked by steam generated from water taken from the stream below the dam. The only use which has been made of the pond, since the last dam was erected, is for floating logs. The respondent claims that this is not a dam, such as complainant can recover against, under the provisions of R. S., c. 92. The form of the complaint is indicated in the opinion. If complaint can be maintained, to stand for trial, otherwise to be dismissed.
    
      G. C. Yeaton, for the complainant.
    
      W. J. Copeland, for the respondent.
   Appleton, C. J.

By B.. S., c. 92, § 1, “ any man may erect and maintain a water mill, and dams to raise water for working it, on his own land, upon and across any stream not navigable.”

The complaint as originally drawn fails to allege that the dam was erected to raise water for the working of the defendant’s mill, and that the same was a water mill. It is not, therefore, within the statute. Jones v. Skinner, 61 Maine, 25. Crockett v. Millett, 65 Maine, 191.

Nor does the amendment, “ that the respondent, on the first day of January, 1872, did erect and maintain, and has continued hitherto to maintain, and still does maintain a water mill, and dam to raise water for working it, on his own land, situated in Wells, upon and across a certain stream, not navigable, known and called as Ogunqnit river,” aid her. The proof negatives every material allegation in the amendment. The mill is propelled by steam and not by water. The dam is not to supply a head of water for the working of the mill, but to float the logs to be sawed there. The case is not within the provisions of R. S., c. 92.

Complainant nonsuit.

WaltoN, BaRRows, Yirgin and Libbey, JJ., concurred.  