
    Commonwealth versus Jeduthun Stevens.
    The statutes for the support and regulation of mills will not justify or excuse the erection of a dam in such manner as to overflow a public highway already appropriated and in actual use, and thereby render it impassable.
    Indictment for a nuisance to a highway in North Brook-field.
    The parties agreed upon the following facts. In 1773, the selectmen of Brookfield (then embracing the territory of North Brookfield) laid out the highway in question. In 1826, the defendant, having a mill privilege upon a stream called Five Mile river, erected a dam in Brookfield for the purpose of raising a head of water to work certain mills which he was building, which head of water was necessary for the mills and has since that time been used to drive them. By the erection of the dam, .about fifteen rods of the highway, within the limits of North Brookfield, were overflowed and rendered impassable. If these facts constitute a defence, the defendant was to be discharged ; but if they do not, then it was agreed that the defendant has voluntarily constructed a new highway for the convenience of the public, which has never been located by the town of North ' Brookfield or any other public authority. If the Court should be of opinion that opening such a way constitutes a defence, and that it is necessary for the defendant to show that it is as convenient, good and safe a way as the one which was overflowed, then this fact was to be settled, by a jury.
    The cause was argued in writing.
    Merrick, for the Commonwealth,
    to show that such an obstruction to the road was an indictable nuisance, cited 1 Russell on Crimes, 462, 463. And he argued that the St. 1795, c. 74, for the support and regulation of mills, authorized the mill proprietor to overflow only lands owned by individuals, a remedy being provided for them ; whereas no remedy is provided for a town, in case any of the ways within its limits are overflowed by a mill-owner. Stowell v. Flagg, 11 Mass. R. 364 ; Millbury v. Blackstone Canal Co., 8 Pick. 473 ; Perley v. Chandler, 6 Mass. R. 454 ; Mams v. Emerson, 6 Pick. 57.
    
      
      J. Davis, for the defendant,
    urged that from a remote period it has been the policy of this Commonwealth to bring into action as much mill power as the capital and business of its citizens require ; and this is deemed an object of so great importance, that the proprietor of land is constrained to yield it up, whatever may be the inconvenience to himself, provided it is necessary to overflow it •, Wolcott W. Manuf. Co. v. Upham, 5 Pick. 292. Land owned by the State or a county or town, falls as much within the provisions of the statute of 1795, as if it were private property. It is objected that the right of the public in a way is an easement only, and that no provision is made by which the damages may be secured to those interested in the easement, and that annual damages cannot be assessed. There seems however to be no greater difficulty in assessing such damages than in many cases of individual ownership ; and the St. 1824, c. 153, § 3, authorizes the assessment of damages for causes other than injury to land.
    July 1831.
   Per Curiam.

The Court are of opinion that the provisions of the acts for the support and regulation of mills, cannot be so construed as to justify or excuse the erection of a dam, in such manner as to overflow a public highway, already appropriated and in actual use, and thereby render it impassable. The object of the act (St. 1795, c. 74,) as also of the provincial act, was the encouraging the building of mills, serviceable for the public good and benefit of the town, and probably no conflict was anticipated between public-spirited proprietors of mills, having these objects in view, and those who might represent and manage other public interests. The mischief intended to be guarded against was the expense and vexation arising from a multitude of actions for damages to be brought by private owners of land. All the detailed provisions of the acts, go to show that such was the intent of the framers ; and there being no provision made for an indemnity to the public, it seems manifest, that no encroachment on the public rights was intended to be sanctioned. If public policy and consistency of the power contended for with other existing privileges, require a further extension of the provisions of the mill acts, it is a question of legislative, not of judicial consideration. We are satisfied that the existing provisions of these laws do not warrant the acts done by the defendant, and furnish no legal ground of defence against the indictment for a nuisance, with which he stands charged.  