
    CALEB ROSS vs. NATHANIEL HORSEY.
    Trespass on the ease is the proper form of action under the “act for the preservation of mill property.”
    In case of an unusual discharge of water from any cause the duty of giving notice is obligatory, and it is no defence that such notice would not have been of any use to the lower mill.
    
      Notice; when to be given — by and to whom. — An unusual quantity of water; how measured. — Damages; how estimated.
    A gnsi-mill is any mill that grinds grain, whether for toll or for merchandise.
    This was an action of trespass on the case, founded on the statute of 1819, “for the preservation of mill property.” (Sec the act, ante pp. 1, 2.)
    The declaration charged in the first count a idlfuJ, and in the second an accidental discharge, of an unusual quantity of water by Horsey, the owner of an upper grist mill, upon the mill of Ross, next' below on the same stream, by which that mill was broken; and that defendant gave no notice of such discharge to the owner or possessor residing at the lowerj mill.
    Plaintiff proved himself to be the owner and possessor of the lower mill, which was a merchant mill for the manufacture of flour: that Horsey was the owner and possessor of the mill next above: that on the 13th September, 1838, during a violent storm, defendant cut his own dam when it was on the point of being broken, and discharged the water on plaintiff’s dam by which it was broken, and that he gave no notice to plaintiff or to his tenant residing near the lower mill.
    The defendant’s counsel moved a nonsuit on these grounds: 1st. Because in this penal action requiring great strictness, the plaintiff’s proof that his mill was a merchant mill and used for grinding his own grain exclusively for market, did not sufficiently meet his declaration describing it as a grist mill, which it was contended was understood legally, and by universal acceptation, to mean a mill grinding grain for grist or toll. 2d. That the declaration denying notice to plaintiff or any person residing at the lower mill, did not negative notice to a person residing near the mill; and 3d. That this action of trespass on the case was not the proper form of action, but should have been debt on the statute which gives the damages “to be recovered as debts of like amount are or may be recoverable by the laws of this State.”
    
      Per Curiam. — The Legislature has given an exposition of the meaning of the term “grist-mill,” by applying it to the mills on the Bran-dywine. (Digest 405.) It means any mill grinding grain, whether for toll or otherwise. As to the defect in the averment of want of notice to the person residing at or near the mill, it is not a question of variance to be decided on this motion, but whether the plaintiff has stated a case coming within the act of assembly, and this question may be raised at a future stage of the cause. The form of action is right. Trespass on the case will often lie upon a statute. This is an action for unascertained damages, and the quotation from the act itself, as to the mode of recovery, refers to the jurisdiction, and not to the form of action.
    Nonsuit refused.
    The defence set up was, that Horsey’s dam was swept away by a flood near midnight; that he had not time to send notice to Ross before Wm. Ross, the'son and agent of Caleb Ross, came and received notice.
    The defendant proved that there was a violent rain and storm on the 11th and 12th. of September, such as no one had recollection of before then; it rained incessantly all the 11th; broke Kinney’s mill-dam above Horsey’s,, and an old dam above his which had an open way in it, over which there was a bridge.
    Question of the witness. — From your knowledge of these streams and the storm, could any notice have saved the lower mills?
    This was objected to, and it was contended by plaintiff’s counsel, that as the law imposed the duty of giving the notice, no defence could be admitted, except that of showing notice. That the legal duty being omitted, the law necessarily implied the damage as arising from this neglect, and excluded any inquiry as to whether the notice would have been useful or not. The question was a collateral one; not whether the notice was given, but whether notice would have been useful. The admission of such an inquiry wnuld go far to repeal the law. Due notice is immediate notice.
    
      For the defendant, contra, it was urged that the act requiring notice to be given, and imposing a penalty for the neglect or omission to give notice, gives double the damages incurred from the neglect, and not from any other cause. If it can be shown that no damage arose for want of notice, but that the damages arose solely from the violence of the storm or flood, and could not have been remedied or avoided by any notice, however prompt, there could be no damage to be doubled, or visited on the upper miller for neglecting to give notice, as no damage could be said to result from want of notice.
    
      The Court ruled out the testimony; the Chief Justice saying — This act is a remedial statute, penal also to be sure, but remedial for the protection of mill property, which is of great value to the public as well as individuals. Its object is to compel a mill owner on the occurrence of such an accident as this, to give immediate notice to the mills below for their protection. The duty is a simple and easy one; and it is guarded by a penalty. That penalty is double the damages “which may be sustained by the owner of the lower mill:” — damages occasioned not by the neglect to give notice, which cannot properly be said to cause any damage, but by the discharge of water. The act does not refer it to the upper mill owner, nor to the jury, to say whether notice was necessary; it requires notice in all cases to be given, and imposes the penalty oí double all the damage which may arise from the discharge of the water, or the neglect to give notice. It is true, that if the breaking below should arise from any unsoundness of works or dam, and not from the discharge of water above, such would not be a case for damages under the law; for such damage would not arise from the occurrence in relation to which notice is required.
    The case was argued, at length, before the jury by Frame and J. Jl. Bayard, for plaintiff; and Bates and Booth, for defendant, and
   Bayard, Chief Justice,

charged the jury. — The act of assembly does not lessen the responsibility of the mill owner at common law for injuries resulting from his own acts or the acts of his agents, or the culpable negligence of either; but, regarding mill property as one in the preservation of which the public is interested, as an additional safeguard imposes the duty upon the owner, possessor or person residing at or near the mill, to give notice to the owner, possessor or keeper of the mill below, of any toilful or accidental discharge of an unusual quantity of water; and imposes a penalty upon ihc person who neglects the performance of that duty, of double the amount of the damages which may be sustained bv such an unusual discharge of water. There are four points which must be established to enable the plaintiff to recover. 1. That the defendant is either the owner, possessor or person having charge of the upper mill. 2. That there was an unusual discharge of water either wilful or accidental. 3. That no notice was given. 4. That the injury is the consequence of such discharge.

There is no dispute as to the first point; it is admitted that the defendant is the owner of the upper mill.

On the second point, whether there was an unusual quantity of water discharged from Horsey’s mill on this occasion, the defendant’s counsel have revived in the argument a question on which the. court has heretofore in the course of this cause been obliged to express an opinion; and which was also decided by this court at the last term in a similar case. The term unusual quantity of ivater, refers to the usual discharge — the volume of water usually consumed by the mill and wasted from the pond; that is, the force and supply of the stream, having regard to its natural sources and a reasonable reference to the state of the weather. All beyond this is unusual. The act must have a reasonable construction, and the persons who passed it must be supposed to have been reasonable men, and to have had reasonable and proper objects in view in passing the law. It was intended to protect mill property; it is so entitled. It was designed to protect the owners of lower mills against the wilful or accidental discharge of an unusual quantity of water, by imposing on the upper mill owner the duty of giving notice of such unusual discharge of water on any occasion, whether wilful or accidental. The lower mill owner must be supposed to know what quantity of water usually comes down, having reference to the force of the stream and the season, and to provide against it; but whenever the upper mill sends down any quantity of water beyond this, such a discharge could not be anticipated by the lower owner, and he is reasonably, as well as by the express provisions of this law, entitled to actual notice of such discharge. In many cases this question may be difficult of determination, as it would be impossible to measure the discharge of water with great nicety; but there cannot be much if any difficulty in cases of a discharge of the whole contents of a mill pond by the wilful or accidental breaking of the dam. Such occurrences are not usual, and few if any mills are prepared to resist them without notice; in such cases, therefore, it is pre-eminently the duty of the upper mill owner to give notice as soon as the nature of the case will admit of it.

It is not denied that the lower dam of Ross was broken; and, as no other cause has been assigned for the breach than the unusual discharge of waterfrom above, it must be presumed to have been broken by such discharge. It remains then to inquire, whether notice was given, in the language of the act, as soon as the nature of the case would admit. Each case must depend upon its own circumstances for the settlement of this point.

In the case of a wilful discharge of water in fair weather, as for the purpose of repairing, notice should be given before doing the act; but in the case of a wilful discharge of water under the pressing circumstances of a storm, where to preserve other parts it was necessary, not merely to waste it, but to cut a part of the dam to preserve the whole, it would be sufficient to give notice as soon as the circumstances would permit, such as the facility of conveyance, the number of hands employed, the pressing demand upon their attention for the preservation of the property.

The character of the notice must be determined by the same reasonable construction of the law in reference to the mischief it was designed to remedy,.and the duty it imposes. That duty is, in case of the wilful or accidental discharge of an unusual quantity of water, to give notice of such discharge as soon as the nature of the case will admit. The duty of providing for the safety of his neighbor’s mill cannot be paramount to the right of taking care of his own. This would be unreasonable. If the force of tempest and flood was so great on this occasion as to require the presence of Mr. Horsey and all under his command, to preserve his own mill and dam, he could not reasonably be required to detach a part of that force as a messenger to the lower mill; in this state of peril to all mill propertjr, arising from this unusual storm, all persons w'ere bound to be vigilant to provide for its effects; and though the duty of transmitting actual notice of breaches from those above to those below, attached the moment it could be done without abandoning their own property, and in fact, increasing the danger to all, it is not reasonable, and the law does not require that it should be given sooner.

The notice is to be given to the owner, possessor or keeper, or either of them, residing at or nearest to the mill. The burthen of the proof of this fact is upon the defendant. It is a duly to be performed by him; and he must show that he has performed it. If he has no? proved to the satisfaction of the jury that he gave notice as soon as the nature of the case would admit of, to the person entitled to receive it, the verdict ought to be for the plaintiff. In the event of finding for the plaintiff, the question arises as to the measure of the damages. This act is penal as well as remedial. The gist or foundation of the action is not the injury sustained, but the omission of a duly for which a penalty is imposed. For this reason the court think that the question of damages is confined to the immediate damage sustained by the destruction of the property, and not to the consequential damage resulting from the loss of profits. The immediate damage is easily proved, and is, therefore, the proper measure, and for the most part would be a tolerably uniform one; but the consequential damage, which would depend upon the skill and capital and industry of the owner, introduces considerations too complicated for the consideration of the jury; and the double damages would, probably, more than cover such consequential loss.

Cullen, Bayard, Frame, and Houston, for plaintiff

Ridgely, Booth and Bates, for defendant.

The plaintiff had a verdict of $75, which, on motion, the court doubled.  