
    Josiah Bates vs. The Weymouth Iron Company.
    A mill owner, who erects a reservoir dam on his own land, across a natural stream other than the stream on which his mill is situated, and constructs an artificial channel from the reservoir to his mill pond, for the purpose of conducting water from the reservoir to his mill, and also to enable him to use the reservoir for the purpose of holding the surplus water of the mill pond, is liable, notwithstanding the mill act (Rev. Sts. e. 116), to an action on the case for the flowing thereby occasioned of the land of another person situated above the reservoir on the stream across which the reservoir dam is built.
    This was an action on the case for making and maintaining a dam in Weymouth across a stream running through the plaintiff’s land, and below the same, and overflowing it. The defendants justified under the mill acts, and contended that an action at common law could not be maintained, but that the plaintiff’s only remedy was by a complaint for a sheriff’s jury to assess the damages.
    The case was submitted to the court upon the following statement of facts: —
    “ The defendants have a rolling-mill on Back river in Weymouth, with a number of wheels, with as many gates to admit water to the wheels. The water from one of the wheels passes off much lower than the water from the others, and thence passes down the natural channel of Back river, and about fourteen feet lower than the channel leading froir the rolling-mill dam to the lower pond. The rolling-mill darr. is about fifty rods west of the lower pond and dam. The water, which passes under the other wheels used for driving the machinery in the rolling-mill, does not pass down the natural channel aforesaid, but, by means of an artificial channel, made before the memory of any man now living, runs to the lower pond above named, on the dam of which are situated the nail factory, forge and grist-mill of the defendants. The grist-mill is as old as the dam. The nail factory was built about twenty years ago as a tack factory; and was sold to the defendants about six years ago, when they converted the tack factory into a nail factory, and about one year after their purchase, enlarged the nail factory, and put in machinery for making nails requiring more water power than the tack fae'tory did. The defendants first erected the forge on the lower dam in 1847.
    “ The capacity of the basin of the defendants’ lower pond, which drives the nail factory, forge and grist-mill, since the enlargement of the nail factory and the building of the forgo, is insufficient for the constant running of the nail factory, forge and grist-mill; and for want of room, the proximity of highways, and the slope of the land on the south side thereof, cannot be enlarged except by a reservoir at a distance therefrom. The lower pond is about the same size as it always was, except a small enlargement by the defendants since they purchased six years ago. The lower pond is so small, and the flow of the water from the rolling-mill dam to the lower dam is so much greater than the amount of flow during the same period of time from the nail-mill, forge and grist-mill, that when, prior to the summer of 1848, the rolling-mill was in full operation, the lower dam could not retain all the water for use as it came from the upper dam, but a great portion of it ran to waste. Prior to the year 1848, when the rolling-mill was stopped, there was not a supply of water to run the nail factory, forge and grist-mill, and before the reservoir hereinafter mentioned was made, the business at the nail factory and forge was therefore an intermittent one, unless water was let down from the rolling-mill for the purpose, without being used for running the rolling-mill.
    “ Prior to the year 1848, a brook, or small river, ran from a place above where is now the reservoir pond hereinafter described, and through about the centre of the reservoir, through the plaintiff’s land flowed, and out at the north-westerly end of what is now the reservoir, and thence into the natural channel of the Back river, at a place about eight rods southeasterly of the lower pond, and far below the bottom thereof, and of course not discharging itself into the lower pond. The part of the plaintiff’s land flowed is from eighty to one rundred rods south of the lower pond.
    “ In the year 1848, the defendants, for the purpose of creating a reservoir for their lower pond, erected on their own land a dam across the brook four or five rods below, and north of the northerly boundary line of the land of the plaintiff that is flowed, and thereby, and by natural high hills of land at each extremity of the dam, raised a pond of water so as to flood more than two acres of the plaintiff’s land, and dug and made an artificial canal (the bottom of which is about three feet lower than the surface of the water in the lower pond when full) on their own land, from the lower pond, and crossing over the natural channel of Back river, about fourteen feet higher than the surface of the water therein, and extending in a southerly direction into the reservoir pond, at the north-easterly end thereof. The reservoir dam is about seventy-five rods south of Back river. The plaintiff owned no land between the reservoir dam and Back river.
    “ The reservoir pond was created for two purposes. One purpose was to retain and save water sufficient to let down from the reservoir into the lower pond to drive the nail factory and forge, when the rolling-mill was stopped, or when there was a scarcity of water from that source. The other and principal purpose was to save the water coming from the rolling-mill when in full operation, and a great part of which water would otherwise (from the want of the capacity of the basin of the lower pond) have gone to waste, by setting the same back up the artificial sluice into the reservoir, until by the using of the water of the lower pond, and the consequent reduction of its height, the water flowed from the reservoir into it. In the course of running the rolling-mill and the nail factory and the forge, the water flowed from the reservoir into the lower pond, and from the latter into the former, according as the rolling-mill was in operation, with a full stream or not, and by this arrangement the water from the rolling-mill was pretty much saved for use. Nearly every day since the reservoir and artificial sluice thereto were both completed, and when the nail factory, forge and rolling-mill were in operation, the water might be found running in the sluice, one way in one part of the day, and the other way in the other part of the day.
    “ There is no dam on Back river that would flood the plain tiff’s land without the reservoir and artificial canal hereinbefore described. If any dam was built below the rolling-mill dam, on the natural channel of Back river, that would cause the water to flow upon the plaintiff’s land that is now flowed, if would flow up, and essentially obstruct the running of the lower wheel of the rolling-mill dam.
    
      " The defendants can ordinarily keep the water as high as the reservoir dam now is, without setting the water back from the lower pond into the reservoir, in which case they would use it only to let down into the lower pond, when the rolling-mill was stopped, or there was a scarcity of water coming into the lower pond from the rolling-mill, but a considerable portion of the time, and especially in the summer season, the water would not be so high in the reservoir as the dam thereof is, unless the water was set back from the lower pond into the reservoir, as above described.
    
      “ By means of a stop-water, put in on the 10th day of February, 1851, the water was prevented from being thrown up from the lower pond into the reservoir, or from running down therefrom, except from the waste-gate of the reservoir, which stop-water remained on the 17th of February, 1851, when a current of water, one inch in depth and twenty-six inches in width, was found to be running over the top of the waste-gate after the reservoir was full.
    “ If, upon the whole matter, the court shall be of the opinion that an action at common law can be maintained, then the defendants are to be defaulted, and the damages are to be assessed by a jury at the bar of this court; but if the court shall be of the opinion, that the plaintiff’s only remedy is by a complaint for the sheriff’s jury to assess the damages, then the plaintiff is to become nonsuit.”
    
      J J. Clarke, for the plaintiff.
    
      E. Ames, for the defendants.
   Shaw, C. J.

This case presents a new question under the mill acts. The relative rights of land owners and mill owners are founded on the established rule of the common law, that every proprietor, through whose territory a current of water flows, in its course towards the sea, has an equal right to the use of it, for all reasonable and beneficial purposes, including the power of such stream for driving mills, subject to a like reasonable and beneficial use, by the proprietors above him and below him, on the same stream. Consequently, no one can deprive another of his equal right and beneficial use, by corrupting the stream, by wholly diverting it, or stopping it from the proprietor below him, or raise it artificially, so as to cause it to flow back on the land of the proprietor above. This rule, in this commonwealth, is slightly modified by the mill acts, by the well known provision, that when a proprietor erects a dam on his own land, and the effect is, by the necessary operation of natural laws, that the water sets back upon some land of the proprietor above, a consequence which he may not propose as a distinct purpose, but cannot prevent, he shall not thereby be regarded as committing a tort, and obliged to prostrate his dam, but may keep up his dam, paying annual or gross damages, the equitable assessment of which is provided for by the acts. It is not a right to take and use the land of the proprietor above, against his will, but it is an authority to use his own land and water privilege to his own advantage and for the benefit of the community. It is a provision by law, for regulating the rights of proprietors, on one and the same stream, from its rise to its outlet, in a manner best calculated, on the whole, to promote and secure their common rights in it.

The question in this case, with slight modification, may be stated in the words of the learned counsel for the defendants. It is this; whether, by the true construction of the Rev. Sts. c. 116, a mill owner, having mills on one stream, who has not sufficient water from that stream, may erect a reservoir upon his own land across another natural stream, between which and the former there is no natural connection, except at their confluence below, (for convenience this second stream may be called a brook), and raise a head of water, and thereby flow the land of another person above, through which such natural stream (the brook) runs down to the reservoir dam, and then conduct the water from the reservoir upon his own land, by an artificial channel, down to the pond on which his own mill stands, and not be liable to an action at common law; such artificial channel being kept much higher than the natural outlet of the brook, in order to turn it into the plaintiff’s pond, to add to his power derived from the other stream.

The second question, supposing he has a right to raise his reservoir on the brook, in order to collect all the water which the brook alone would afford, and turn it into his lower pond, derived from another source, namely, the main body of the Back river, after passing through the rolling-mill, is whether he may make use of the same artificial channel, kept at a height greatly above the natural bed of the stream, Back river, and carried across it by means of a trunk or aqueduct, to convey the surplus water coming from the rolling-mill to the lower pond, and so use the reservón made upon the brook, as a reservoir for the water from the rolling-mill, being a large portion of the volume of water naturally flowing down Back river, and carried to the rolling-mill by means of a dam across that river above the rolling-mill.

There is no doubt that a reservoir dam is a mill dam within the meaning and provision of the mill acts. It is not necessary that the dam be immediately connected with or quite near the mill; it is sufficient, though at a considerable distance, that it be directly and obviously' subservient to the purpose of carrying a mill. Wolcott Woollen Manuf. Co. v. Upham, 5 Pick. 292; Fiske v. Framingham Manuf. Co. 12 Pick. 68. And when the remedy under the mill acts can be had, it is exclusive, and a bar to an action at common law as for a nuisance. Stowell v. Flagg, 11 Mass. 364.

In the present case, on the first question, the court are inclined to the opinion, that the defendants were not justified by the mill acts, in placing a dam across the brook, and creating a reservoir thereby, so as to flow the plaintiff’s land, when the purpose was, not to carry any mill erected on that stream, but to increase in a small degree the quantity of water in the defendants’ lower pond, for the use of his mills, said pond being supplied from another source, namely, the water flowing from the dam above the rolling-mill, after oeing used in the rolling-mill, and thence passing down to the defendants’ lower pond. A reservoir dam must still be a mill dam, in order to be within the mill acts; and the main purpose and design of the acts was to supply some mill on the same stream. The mill power which could be supplied from the brook alone, would manifestly be very small. On one occasion, in the middle of February, the water was raised from the brook, and after being kept up a week, it rose to the height of the reservoir dam, and carried a very small stream over it. But if the reservoir could be used to raise the water of that stream, for a mill on that stream, it might be neither necessary nor useful to keep it up a whole year, or to keep up a mill at all; and so the complainant might be wholly relieved, or held subject to- a lesser servitude.

But we have not thought it necessary to examine this point with so much care, as we should if the decision depended on it, because the court are all of opinion, that the defendants were not justified by the mill acts, in using the reservoir raised by the dam, on the brook, to receive and hold water coming from the rolling-mill, for the use of the defendants’ lower pond, to supply the grist-mill, forge and nail factory. This seems to have been the principal use of it. It appears that, upon an experiment made about the middle of February, when it may naturally be presumed that the water was high, after the water of the brook had been stopped a week, and without any access of water from the trunk or artificial canal, the water rose at the reservoir so as to run a very little over the dam. But if the water of the brook was sufficient to keep it at that height a great part of the year, it would afford no justification for turning a column of water into it from another source. The grant of power made by the mill acts is, to raise the water of that stream, and being in derogation of common right, it is not to be extended by construction beyond the just and fair meaning of the terms. The reason and principle, on which the right is founded, limits it to that of raising the water of that stream. To this a passage in one of the cases cited by defendant seems to be precisely in point: “ But we think it would be an extension of the principle not warranted by the statute, if it were so construed as to authorize one person to make a canal or artificial stream in such a manner as to lead the water into the lands of another; and in such case, therefore, the right of the party, whose lands are flowed, to recover damages by an action at common law, is not taken away or impaired.” Fiske v. Framingham Manufacturing Co. 12 Pick. 72.

According to the agreement of the parties, the defendants are to be defaulted, and damages assessed for the plaintiff.  