
    Uriel Holmes versus Marvin Moore et al.
    
    An action on the case for diverting a water course dies with the plaintiff.
    In an action on the case the plaintiff declared, that he was the owner and possessor of a grist-mill and saw-mill, with the appurtenances, and was entitled to use the water flowing from Nay’s pond, and that he had the right of erecting, repairing and controlling a dam and gate at the outlet of the pond, so that he might confine the water at times when the pond was full, to supply the waste of water occasioned by drought and to run his mills in the scarcity of water, but that the defendants, at divers times, wrongfully raised and shut the gate, to the plaintiff’s injury.
    The plaintiff died after bringing the action, and the question was whether it survived to his executor.
    The cause was argued in writing.
    
      Bliss, H. W. Dwight, and J. Mills, for the defendants,
    cited 1 Saund. 216, note 1 ; Bac. Abr. Executors fyc., P, 2 ; Hambly v. Troll, Cowp. 375 ; W. Jon. 174 ; Latch, 168 ; 1 Ventr. 187 ; Toller, 433, 436 ; Little v. Conant, 2 Pick. 527.
    
      Bates and Boise, contra, cited
    
      Griswold v. Brown, 1 Day, 180 ; Towle v. Lovet, 6 Mass. R. 374.
   Putnam J.

delivered the opinion of the Court. At the common law, before St. 4 Edio. 3, c. 7, no action could be maintained by an executor for a tort done to the person or property, real or personal, 'of the testator. That statute gave the executor an action of trespass for goods carried away in the life of the testator, and by an equitable construction it has been held to give him a remedy for any wrong done to the personal property, notwithstanding it may not have been carried away.

The statute, with this construction, has been adopted here. It has been confined to injuries to personal estate ; injuries to the person and to the freehold remaining as by the old common law.

The question then is, whether the diversion of a water course is an injury to personal property. It is expressly excepted in the result of the cases collected by Serjeant Williams ; and the position taken by the plaintiff’s counsel, that the right to the mills and to the water may be personal estate, though ingenious, is not supported by the books. And we doubt whether, upon a fair construction, the plaintiff does not declare of an injury to real estate.

It will not do to say that trespass can be maintained by an executor for every injury done to the real estate, whereby it is lessened in value; as is contended in Griswold v. Brown, 1 Day, 180. It is clear that such an action will not lie for cutting down the trees of the testator. Williams v. Breedon, 1 Bos. & Pul. 329. As to the construction, that an action will lie for cutting and carrying away corn, it may be supported on the principle of the damage being done to personal property. The corn, produced by the labor of man, is, according to the doctrine relating to emblements, vested in the executor; but the grass has relation to the freehold, being the natural production of the earth. The case cited of trespass with cattle in a close, is explained in Toller, 433, as being on a leasehold estate, and not on a freehold estate ; which makes all the difference; for trespass qu. cl. fr. et herbam secuit et asportavit, will not lie for an executor. 1 Ventr. 187.

In Little v. Conant, 2 Pick. 527, an action of debt, for wilfully cutting the plaintiff’s forest trees, contrary to St. 1817, c. 173, was held not to survive, the action being for a wrong done to the plaintiff. 
      
       Actions of replevin and trover, actions of trespass, for assault and bat* tery or imprisonment, or for goods talien and carried away, and actions of trespass or trespass on the case for damage done to real or personal estate, are now made to survive by statute, in addition to those which already survive by the common law. And all of the above enumerated actions may be originally commenced and prosecuted by and against executors and administrators, and if commenced by or against the original party in his lifetime, they may be prosecuted or defended against or by his executor or administrator. Revised Stat. c. 93, $ 7, 8. See Little v. Conant, 2 Pick. (2d ed.) 527, n. 2 Merritt v. Lambert, 8 Greenl. 128.
     