
    William Jewell versus Robert H. Gardiner.
    A., owning the land on one side of a stream of water, and under the same to the middle thereof, and also owning the land on both sides and under the whole of the stream at a place below, builds a mill at the place last mentioned, the dam of which causes the water of the stream to flow back to a dam and mill erected by B. at the place first mentioned, so as to prevent B.’s mill from being wrought. It was held that A. was not answerable to B. in damages.
    Case against the defendant for building a dam across the stream called Cobbissee, by means whereof the water of the said stream was flowed back upon a dam built by the plaintiff across the same stream above the dam erected by the defendant, so as to prevent the working the plaintiff’s mill.
    The defendant pleaded, first, the general issue, which was joined by the plaintiff. Second, in bar, that the plaintiff was never possessed of the close mentioned in his writ and' declaration, in which the said mill therein mentioned is situated ; and tenders an issue to the country, which was joined by the plaintiff.
    In a third plea in bar, the defendant alleges, that he is seized in fee of one half of the land over which the said stream flows, namely, the northeasterly side thereof, and of the close at the northeasterly end of the dam erected by the plaintiff; that the plaintiff, at the time of erecting his said dam, or at any time since, had and hath no right of entry, but, without right or authority of law, and against the will of the defer iant, erected said dam, and the same hath continued, against the will and consent of the defendant, to the time of the commencement of this action ; and that he *is [*312] seized in fee of all the land flowed by said stream on the northeasterly side of the centre line thereof, between his, the defendant’s, said mill-dam and the dam erected by the plaintiff, and of the land on each side and adjoining his, the defendant’s, said mill-dam ; wherefore the defendant rebuilt his said dam, &c-, which he lawfully might do, and which is the same building, &c., complained of by the plaintiff, &c.
    To this plea the plaintiff demurs generally, and the defendant joins in demurrer.
    Mellen, for the plaintiff.
    
      Wilde and F. Allen, for the defendant.
    The cause being continued nisi for advisement, judgment was rendered at the following September term in Berkshire.
    
   Parker, C. J.

We do not see any room to question the sufficiency of the defendant’s third plea in bar. He had a right to erect a dam across the stream, where he owned the land on both sides of the stream, as well as the land over which the stream flowed ; and he is answerable in damages only to such person as is prejudiced in some estate or right, which he lawfully enjoyed. Now it is plain, from the facts stated in the plea, and admitted by the demurrer, that the plaintiff had no right to stop the water above by a dam extending from shore to shore, he having no right to the northeasterly shore, but having trespassed upon the defendant in fixing his dam there. The defendant had a lawful right to take down the dam erected without his consent upon his premises ; and, having this right, it would be singular that he should be answerable for consequential damages, for the use of his own property, to one who had no title to the property supposed to be injured.

Defendant's plea good. 
      
       He had no right, however, to cause the water to flow back upon that part of the river belonging to the plaintiff Wright vs Howard, 1 Sim. & Stu. 190.
      [See Tyler vs. Wilkinson, 4 Mason’s Rep. 397. — Ed.]
     