
    HARSH v. BUTLER.
    Nuisance — rule of damage.
    In an action for a nuisance, the plaintiff may recover damages equal to the . injury he has sustained, including the expense of the suit to try the question. The jury should not estimate the price of the landf for that remains the property of the plaintiff.
    . Trespass on the case fOf a nüisancei On the trial before the jury, Thomas Butler was called as a witness by the defendant. He stated, that he held a mortgage on the land in dispute.
    It was then objected that he was interested and incompetent.
    
      J. Harris and W. Silliman for the plaintiff.
    
      Glasgow and Avery for the defendant.
   BY THE COURT.

The witness has an interest to prevent the finding the mill a nuisance, which enters materially into the value of his security.

The witness afterwards stated that the land was worth ten times what is due him, if the mill was removed, and executed a release. He was then sworn.

WRIGHT, J. to the jury. The plaintiff complains of an injury to his mill and land, by the defendant’s dam flooding water back upon it. It is admitted that the plaintiff owns the land where his mill stands, and it is not denied that the defendant erected the dam below, claimed to be a nuisance. If you are satisfied, by the evidence, that the dam of the defendant has thrown the water back upon the plaintiff’s land or mill, to his injury, he is entitled to your verdict for damages, in such an amount as in your opinion will compensate him for the injury he has sustained thereby, from the time of the erection of the dam, up to the bringing of the suit, the 9th November, 1830. It is not the price of the land that you are to give in damage, but a sum equal to the injury arising from the loss of the use of it, with the expense of prosecuting the suit for redress. 100] *The land remains the property of the plaintiff. If you are not satisfied the dam causes the water to flow back upon the plaintiff, to his injury, then the defendant is entitled to your verdict.

Yerdict and judgment for the defendant.  