
    Levi Crittenton, Jr. vs. Charles C. Alger.
    An action by the owner of a mill privilege, and a mill used for carrying on the business of tanning hides, for disturbing him in said business, by washing iron ore in the stream above his mill, and thereby filling up his mill pond with dirt and rubbish, and causing dirt and rubbish to be carried into the vats containing his hides, is an action respecting an easement on real estate, within the meaning of St. 1840, c. 87, § 1, and original and exclusive jurisdiction thereof belongs to the supreme judicial court.
    Trespass upon the case.
    The first count in the declaration alleged that the plaintiff was owner and occupant of an ancient mill privilege on a stream of water in Richmond, and a mill thereon, in which he carried on his trade as a tanner and currier, for many years, and that the defendant, at divers times, had washed a large quantity of iron ore in the stream above said mill, and had thrown great quantities of gravel, dirt and rubbish into said stream, whereby the plaintiff ’s pond, raised by his dam, was continually filled up with dirt and gravel, and his troughs, which were used for carrying water upon his water wheel, were worn out, and great quantities of dirt, sand and rubbish were carried upon his hides and skins, so as greatly to injure and disturb him in his aforesaid trade.
    The second count alleged that the plaintiff was seized in fee of an ancient mill or mill privilege, situated on a stream in Richmond, “ together with an ancient dam to raise a head of water sufficient for the purposes of said mill, and of his business as a tanner and currier of hides, and of having the whole water of said stream flow into his pond, as it would naturally do, without obstruction or defilement, as ancient rights and privileges appurtenant to said mill; and there, by means of his said rights and privileges, was accustomed to carry on the business of tanner and currier, as aforesaid, as he lawfully might: Yet the defendant, well knowing the premises, but contriving,” &c. “unjustly set up, on the stream aforesaid, above the plaintiff’s dam, a place for washing iron ore, and did wash a large quantity, to wit, 10,000 tons of iron ore, at said place, and thereby caused great quantities of gravel, sand, dirt and rubbish to flow down said stream and into the said pond of the plaintiff, and into the troughs used by the plaintiff to carry water upon his wheel, and into the vats and other receptacles of the hides in process of tanning by the plaintiff.” &c.
    The action was commenced in the court of common pleas, at February term 1844, and at the October term 1844, it was submitted to referees, before whom the parties appeared on the 3d of October 1845. At the hearing before the referees, the defendant objected that by St. 1840, c. 87, § 1, the court of common pleas had no jurisdiction of the action, and consequently that the referees had none. It was agreed, however, that the hearing should proceed, and the question of jurisdiction be referred to the court. An award in favor of the plaintiff was made and returned to the court. The defendant then moved that the action should be dismissed foi want of jurisdiction. Whereupon the court, held by Wells, C. J. ordered the action to be dismissed, with costs to the defendant; and the plaintiff alleged' exceptions.
    
      Bishop & H. W. Taft, for the plaintiff.
    
      F. Chamberlain, for the defendant.
   Hubbard, J.

This case comes before us upon exceptions to the ruling of the court of common pleas, dismissing the action from that court, for want of jurisdiction. And the only question is, whether the plaintiff’s action respected an easement belonging to his real estate. This depends on his declaration, which contains two counts. These counts, we think, set out substantially the same legal rights of the plaintiff, and the same injuries by the defendant. And if these rights create an easement on the estate of the defendant, then the case is not within the jurisdiction of the court of common pleas, and the judgment of that court was correct.

The plaintiff’s counsel have argued that this was an injury to the plaintiff’s personal estate, and to the realty itself, and not an injury to the easement. But this position, though ingenious, cannot be maintained. The injury to the personal estate is consequential; and if the defendant had a right to use the stream for washing ore, then, though the plaintiff’s personal property was injured, he could maintain no action for such injury, because the defendant’s act was lawful. No trespass has been committed upon the plaintiff, and his realty has not been disturbed. The injury, therefore, is a violation of the plaintiff’s right to receive the water in its natural course from the defendant’s close, free from foreign mixtures of dirt and ore, which fill up his pond and injure his skins and hides by impure matter. This is an unlawful obstruction of nis right to the water in its natural state, and is not distinguishable from the case of Cary v. Daniels, 5 Met. 236, which was thoroughly examined. There the defendant, by erecting a dam, threw back water upon the plaintiff’s wheel, and obstructed the use of it, by checking the regular flow of the water from the plaintiff’s premises ; the defendant being below the plaintiff on the stream. Here the defendant is above, and obstructs the water by the impure mixtures, and by filling the plaintiff’s pond. The injuries are similar in their nature, and are both violations of easements. As in this case, so there, it was contended that the plaintiff’s right was not an easement, but that a natural watercourse was parcel of the premises, and not a mere easement or appurtenance. But the learned judge, in giving the opinion of the court as to the right of the owner to the water, as running through his own land, and his right to have the stream flow from his neighbor’s land to his own, without obstruction or diversion, says, the right which a party has to the use of water flowing over his own land is undoubtedly identified with the realty, and is a real or corporeal hereditament, and not an easement; but the right of a party to have the water of a stream or watercourse flow to or from his lands or mill, over the land of another, is an incorporeal hereditament and an easement, or a prasdial service, as defined by the civil lav/. And it is immaterial whether the watercourse be natural or artificial, or whether the right is derived ex jure natures, or by grant or prescription.” And we entertain no doubt of the correctness of this position.

In the present case, there were the respective estates of the plaintiff and defendant; the dominant tenement in the mill and tannery of the plaintiff, and the servient tenement in the land of the defendant. The plaintiff claims the flow of water from the defendant’s land, -unobstructed and undefiled ; and that right, if established by him, is an easement in the defendant’s land. It is that species of property or right in another man’s property, and his use of it, which is known and treated as an easement, and, as such, is the subject of legal protection. This right, the plaintiff contends, has been injured ,• and St. 1840, c. 87, distinctly confers upon this court the exclusive jurisdiction in the trial of such rights, by giving it such jurisdiction of “all actions respecting easements on real estate.” Following, therefore, the authority of Cary v. Daniels, which we do not wish to disturb by the adoption of nice distinctions, which neither justice nor sound policy require, we are of opinion that the judgment of the court of common pleas was correct, and ought to be affirmed.

Exceptions overruled.  