
    Truman Sampson vs. Samuel Bradford.
    l'he lessor for years of a dam, which is used to raise a head of water to drive a mill, subsequently erected by the lessee, and who retains an interest in the water raised by the dam, is liable under the Rev. Sts. c. 116, to the owner of land above, for the flowing occasioned by such dam.
    This was a complaint under the Rev. Sts. c. 116, for flowing the complainant’s land, by means of a dam erected by the respondent across Finney’s meadow brook in Plymouth for the purpose of driving certain mills situated upon and near the same. The case was submitted to the court of common pleas, and by appeal to this court, upon the following agreed statement of facts: —
    On the 21st of September, 1844, the respondent, who was the owner of the dam in question, leased the same by an indenture in writing and under seal, there being then no mill on Lhe premises, to one Ivory L. Harlow for the term of five years; with the intention and expectation, that the lessee would erect a mill on the premises, to be used in connection with the dam; and the lessee erected a mill accordingly within a year from the commencement of the lease.
    The lease contained the following “reservation and restriction,” namely: “ That the said Harlow shall not hold the water by the dam, while and so long as the said Bradford shall occupy and improve the dam and privilege at his stave-mill below, so as to deprive the.said Bradford of a full pond in the morning at his stave-mill dam, and thec passage daily to his mill of as much water as the natural stream would furnish.”
    Before the erection of the mill by Harlow, there had been no mill on the premises for thirty years, and the flowing caused by the dam was not injurious to the complainant; but at the time or soon after Harlow became the lessee of the premises, he repaired and raised the dam, and began to flow the complainant’s land.
    At the time the dam was repaired by Harlow, and a new gate put in, the respondent, as owner of the dam, was called to be present, and assented to the fixing of the dam and gate, at the height at which the dam was then established, and at which it had ever since been continued.
    On the 29th of January, 1846, Harlow assigned his lease of the dam to one Barnes, who, at the same time, became the purchaser of the mill. Barnes sold the mill, and assigned the lease, on the 5th of February, 1846, to Warren and Sandford, who have since carried on the mill, keeping the dam at the same height to which it had been raised by Harlow, and have flowed the premises described in the complaint.
    The present complainant filed a complaint for flowing his premises against Warren and Sandford, in the court of common pleas, and discontinued the same at the last December term, after a jury had been ordered.
    The respondent, during the whole term since the execution of the lease, had claimed and exercised the right to regulate the dam, and the height of the water, with a view to the passage of the water to his stave-mill dam and privilege below, on the same stream, as referred to in the lease, and the same had been regulated accordingly.
    The complainant’s title was not controverted.
    If, upon these facts, the court should be of opinion, that the complaint could not be supported against the respondent, the complainant was to become nonsuit; otherwise a jury was to be ordered to assess the complainant’s damages.
    
      W. Davis, for the respondent.
    
      J. H. Clifford and J. H. Loud, for the complainant.
   Dewey, J.

The respondent interposes various objections to sustaining this complaint. The principal one is, that the mill was not erected by the respondent, the owner of the dam, but by his lessee. This objection is strongly urged, and is supposed, by the counsel for the respondent, to be sustained by the case of Fitch v. Stevens, 4 Met. 426. But the principle settled in that case was a much more limited one. It was only that a proceeding by complaint, under the mill act, to recover damages for the flowing of land, cannot be maintained where nothing has been done beyond the erection of a dam; no mill being attached thereto and no intent existing forthwith to erect such mill. That case was in many respects widely different from the present. The complaint there was against" Stephen Stevens, who had erected the dam without the mill, Jonathan C. Stevens having erected the mill on his own land below; and the court were of opinion, that a complaint against the owner of a dam without any mill, and before any mill was erected, or any present intention to erect one existed, was not well founded under the statute, and would not authorize an assessment of damages against such party. _

The difference between the case, cited, and the case before us. is quite obvious. In the present case, the dam. and mil] are both on the land of the respondent, and both were erected before the filing of the complaint; and the respondent, although he had leased the dam and mill privilege to a lessee, yet retained an interest in the water raised by the dam, and a direction in the management of the dam. The case, in fact, describes every thing material to bring the case within the provisions of the Rev. Sts. c. 116; unless it is a valid objection to maintaining this complaint, that the respondent had made the lease to Harlow, as before stated. Did that lease operate to defeat the complainant’s right to maintain this complaint, and to recover damages for flowing his land by the water raised by this dam ? We think not, and that the dam and mill both being on the land of the respondent, he may be held liable to this process, although the mill privilege was subject to a temporary lease to a third person, who, after taking such lease, erected the mill under t.he circumstances already stated.

The mill, thus built upon the land of another person, becomes attached to the real estate of the owner of the land, and he is to be taken to be the owner'of the mill. The respondent leased the privilege, with the expectation that, there was to be a mill erected near the dam by Harlow; and under certain stipulations as to his own use of the water and control of the dam. The statute authorizes proceedings to be instituted against either the owner or the occupant; and we are satisfied, upon the facts stated, that the respondent is liable; and that the complaint should be sustained, and that a jury should be ordered to assess the complainant’s damages.  