
    Silas Bemis versus Samuel Clark.
    The St. 1828, c. 137, § 6, which provides that where judgment shall be rendered for the plaintiff in an action on the case for a nuisance, “ the court may, on motion of the plaintiff, in addition to the common execution, issue a warrant to abate the nuisance,” leaves it within the discretion of the court to grant or refuse such motion.
    The above provision is remedial, and not unconstitutional, when applied to a nuisance created and action brought before the statute was passed.
    Where the defendant erected a mill dam, which was found to be a nuisance to the plaintiff’s mill dam erected at about the same time and which prevented the plaintiff from building a mill, and the defendant built a manufactory at great expense, and the plaintiff’s water privilege was of comparatively little value, and the defendant, before the action was brought, mortgaged his estate and it did not appear by the record that the mortgagees had had notice to appear in defence of the action, before the defendant’s dam was adjudged a nuisance, the Court refused to award a warrant to abate the nuisance.
    Case for a nuisance, in obstructing the plaintiff’s water privilege by a dam below the plaintiff’s dam, on Ware river, by means whereof the plaintiff’s dam was overflowed, and he thereby prevented from erecting a mill upon his water privilege.
    The defendant pleaded the general issue, and also a justifi cation under the statutes respecting mills.
    At the trial, in 1829, it appeared that on July 5, 1825, the plaintiff purchased a mill privilege which had seven feet head and fall on his own land, and that on August 26th he began to build his dam, which was finished in October. It also appeared, that by reason of the overflowing caused by the defendant’s dam, the plaintiff could not make use of his dam.
    It was proved that the defendant purchased the land where on he built his dam, on August 30, 1825, and that he began to build his dam in a day or two afterwards ; that it was finished in November, and that the defendant, at a great expense, erected a cotton manufactory, which was put in operation in September 1827. The defendant might have built his dam further down the stream upon his own land, and have had ten or twelve feet head and fall upon his own land, but he supposed, that as the plaintiff had not erected a mill, he (the defendant) might, in virtue of the mill acts, make the dam as far up the stream as his own land extended, and so raise a head of water by overflowing the plaintiff’s dam, hy which he would obtain seventeen or eighteen feet head and fall.
    Oct 7th.
    The jury found a verdict for the plaintiff.
    At April term 1830, the plaintiff moved the Court, that in addition to the common execution for damages and costs, they would issue a warrant to the sheriff or his deputy, to abate and remove the defendant’s mill dam, because it had been duly adjudged a nuisance to the plaintiff.
    ■ In March 1831, the defendant filed a proposal to pay the plaintiff for the injury to his dam and mill privilege, such sum as three disinterested men should award.
    The defendant mortgaged his estate to Upham and others, by deed dated November 20, 1826, and recorded on the 27th, which was before this action was commenced. Notice of the plaintiff’s motion was given to the.mortgagees, by order of the Court.
    
      J. Davis and Washburn,
    in support of the plaintiff’s motion, referred to St. 1828, c. 137, § 6, which provides, that “when judgment shall be rendered for the plaintiff in any action on the case for a nuisance, the court may, on motion of the plaintiff, in addition to the common execution for damages and costs, award and issue a warrant to the sheriff or his deputy, to abate and remove the nuisance at the expense of the defendant, in like manner as public and common nuisances are abated and removed.” Where a warrant of abatement would issue for a public nuisance, the court will issue one for a private nuisance under this statute ; and this is such a nuisance as, if public, would be abated. The case is within the reason of the provision, which is, to prevent a repetition of lawsuits and of breaches of the peace. The judgment of the Court has determined the defendant’s mill to be a nuisance, and it must continue to be one until it is abated.
    The statute is not retroactive as applied to this case. Our motion is, to do away the nuisance for the future. Besides, the statute creates no new right, but only gives, in a new form, a remedy which the plaintiff had before at common law. Foster v. Essex Bank, 16 Mass. R. 245 ; Bacon v. Callender, 6 Mass. R. 309 ; Holyoke v. Haskins, 9 Pick. 259.
    
      Lee, for the defendant,
    said the statute was passed after the action was brought, though before the defendant’s dam was adjudged a nuisance ; and he contended that the statute would be retrospective and unconstitutional, if construed to apply to this case ; and 2. that it was discretionary with the Court to grant or refuse the warrant, and under the circumstances, the Court would leave the plaintiff to choose between the proposed arbitration and his remedy at common law.
    
      Oct 11th.
    
    
      Hoar and Newton
    
    opposed the plaintiff’s motion, because the mortgagees had had no opportunity of being heard at the trial of the action, and they were not concluded by the judgment against the mortgager. Com. Dig. Fine, I1, cites 2 Inst. 516, and I3, cites 1 Vent. 82 ; 1 Phil. Evid. (New York edit.) 223.
    
   Putnam J.

delivered the opinion of the Court. We are satisfied that the St. 1828, c. 137, § 6, does not make it the duty of the Court to grant a warrant for the abatement, unless they should deem it expedient to issue such a warrant. And also, that this statute is remedial and constitutional, and not ex post facto.

And we all think that it is not expedient to grant the warrant for the abatement of the nuisance, for the following reasons.

It appeared in evidence upon the trial, and is not denied at this hearing, that Clark had erected very expensive manufac tories below the dam which has been found to be a nuisance, and that comparatively, the dam and mill privilege of the plaintiff are of small value. No action has been brought for the continuance of the nuisance since the verdict was rendered. If one were to be commenced and laid before another jury, they would take great care to give an adequate compensation m damages. In ordinary cases, the Court would not be disposed to interfere in the summary way of abatement, until other remedies should fail of giving complete justice to the party injured. Besides, the remedy given by the statute above cited is cumulative. And the party who sustains an injury from a nuisance may abate it himself, in the manner prescribed oy the law, or have his action for the damages:

It has been suggested, however, that Clark, against whom the judgment was recovered, is a bankrupt ; and that a suit against him and a judgment upon a recovery of damages, would be wholly unproductive. It is admitted that he has now no interest in the dam which was found to be a nuisance, but that it is held by Upham and others under Clark’s deed, which was made and recorded before the action was brought against Clark. Now an action may be sustained against those who continue the obstruction, and it is not contended but that they are solvent. If they are bound by the former judgment, then the plaintiff will be sure of his damages. If they are not bound by the former judgment, then it would be manifestly unjust to abate the dam before they have been heard upon the lawfulness of its erection. It is said that it can be proved that they had notice and were present (or might have been) at the former trial, and therefore cannot set up this defence. But we cannot know that to be the case judicially. The record of the Court in the case does not give any evidence of the alleged fact. It is true that they are only mortgagees ; but to many most important purposes, the interests of the mortgager and mortgagee are distinct. In the case of Colton v. Smith, at Hampden this circuit, it was held that a partition made by the mortgager was void as against the mortgagee.

The result may be, that the plaintiff may find it necessary to bring another action against those who now keep up the dam, and who claimed a title in the premises before the former action was brought; and we cannot help the plaintiff in that respect, much as we desire to prevent litigation.

Upon the whole, we decline at present to grant the warrant. The opinion of the Court is, that the plaintiff shall take nothing by his motion. 
      
       See Rev. Stat. c. 106; Bends v. Upham, 13 Pick. 170 ; post, 543.
     
      
       See Lobmis v. Ives, 15 Pick. 435; Wilbur v. Gilmore, 21 Pick. 250.
     