
    *Ichabod Colburn and Another versus Luther Richards.
    One owning an ancient mill may lawfully go upon the land of another, and remove an obstruction, erected across the stream for the purpose of irrigating the land, by which the mill is prevented from working.
    Trespass for breaking and entering the close of the plaintiffs, and destroying a certain water-gate, &c.
    The parties submitted the action to the determination of the Court upon the following case, namely ; — The plaintiffs are seized and possessed of the meadow described in their declaration, through which runs an ancient watercourse ; and about seven years since, for the purpose of irrigating and fertilizing their said meadow, they erected a dam, and placed a gate, at a place in the said meadow where were the remains of an old dam, but where there had been no dam, within the memory of man, sufficient to stop the water. Since the erection of the said dam, the plaintiffs have shut down their said gate, and flowed their meadow at pleasure, during the winter.
    The defendant owns a grist-mill, which has been built about fifty years, situated about three quarters of a mile below the plaintiffs’ dam, and on the same stream ; to which, before the erection of the said dam, the water ran without impediment through the meadow of the plaintiffs ; and now, all the water of said stream, after it has been raised to the height of the plaintiffs’ dam by shutting down said gate, runs in its ancient channel to the said grist-mill ; except what is absorbed in the soil of their said meadow, or evaporated. But, while the water is rising, after the said gate is shut down, the defend ant’s said grist-mill is nearly useless.
    On the 25th of November, 1815, the plaintiffs shut down their said gate, and thereby stopped the water of said stream, so that the defendant was unable to use his mill, except during a short time each day. Wherefore, at the time in the declaration mentioned, the defendant drew up and took away the said gate, and thereby prevented the plaintiffs from overflowing their said meadow.
    * If, in the opinion of the Court, the plaintiffs could by law maintain this action, the defendant agreed to be defaulted, and that the plaintiffs’ damages should be assessed by a jury ; otherwise, the plaintiffs were to become nonsuit.
    Worthington, for the plaintiffs,
    agreed, that, if they could not lawfully erect and keep up the dam and gate, the defendant had good and lawful right to take down the gate, in the manner he had done But he contended, that the owner of land, through which a stream of water runs, has a complete right to the use of such water for the purpose of irrigating his land ; although, if he does the same thing idly, and for no purpose, or for the purpose of incommoding his neighbour, an action would lie against him. The facts in the case of Weston vs. Alden 
       were very like those in the case at bar ; and the decision is very full. “ A man owning a close on an ancient brook may lawfully use the water thereof for the purposes of husbandry, as watering his cattle, or irrigating the close ; — and, if the owner of a close below is damaged thereby, it is damnum absque injuria.” The difference between sluices in that case and a dam in this, and a mill hero and other useful purposes of husbandry there, cannot be material. 
    
    Richardson, for the defendant,
    cited the authorities in the margin. 
    
    
      
       8 Mass. Rep. 136.
    
    
      
      
        Sullivan on Land Titles. 273. — 6 East, 218, Day's edition, a note of the case of Howard vs. Mason, cited from 1 Root's Rep 537.
    
    
      
      
        Com. Dig title, Action upon the case for nuisance, A —Luttrell's case, 4 Co. Rep 86. — 1 Wils 175. — 9 Mass Rep. 316. — 6 East, 218.
    
   Parker, C. J.,

delivered the opinion of the Court. In the case of Hodges vs. Raymond & al., cited from 9 Mass. Rep. 316, the common law doctrine is recognized ; one, having a right to a watercourse to carry his mill, may justify entering upon the land of one who has erected any obstruction, to remove it. That is precisely the case of the defendant in this action ; unless the purpose for which the dam was erected by the plaintiff, namely, to irrigate and fertilize his meadow, forms an exception to the general rule of law.

According to the case cited from 1 Wils. 175, the plaintiffs had no right to adopt any new measure to irrigate *their land, the consequence of which would be injurious to the priyilege below. But it has been urged, u'$tt the case of Weston vs. Alden is an authority in point, to establish the right claimed by the plaintiffs. There is, however, this difference between that case and the one now before us., In that case, there was no obstruction to the course of the water; sluices-were made for it into the land of the defendant in that action, and the water, after washing his lands, still passed down the natural channel. Nor does it appear in that case, that the plaintiff had acquired a' right by prescription to the use of the stream, to carry works which had been erected and maintained at expense ; but he had merely enjoyed the natural benefits of the stream, without any labor or expense of his own. In the case before us, the whole stream was stopped, or, at least, so much of it as to render the defendant’s mill entirely useless. There is no principle upon which this can be justified ; and we think that the defendant had a perfect right to remove the gate which occasioned him the injury. The plaintiffs must be called.

Plaintiffs nonsui¿  