
    Neal and Shelton vs. Henry.
    WATERCOURSE. Riparian owners, their rights. To cause the waters óf a stream, by the erection of a dam or the liko below a party’s line, to overflow his grounds and springs, or ther'eby to create, near his residence, ponds of Stagnant and offensive water, injurious to health-, is a nuisance and an actionable injury.
    This was an action on thé case brought by Henry against Neal and Shelton, in the circuit court of Fayette, for a nuisance, produced by erecting a dam across a stream of water, called Muddy Creek, below plaintiff’s land, whereby it was overflowed, and certain springs of water Which Were accustomed to bé thereon were destroyed, and the Waters of the stream became stagnant and impure, so that the plaintiff’s family became Unhealthy and sick and were püt to great expense of physicians’ bills, &c.
    The defendant pleaded not guilty. The cause was tried at September term, 1837, before Judge Read, of the tenth circuit.
    The plaintiff below proved, that the dam caused a part oí his bottom land to he overflowed, especially by swells of the stream! that the water was backed the distance of two miles, at common stages of water, through the whole extent of the plaintiff’s land, leaving a part fit for a small settlement on the opposite side from his dwelling; that there had been two springs fit for use, near to, but above the water’s edge, at low water, capable of being raised much higher, by gums, which are covered by the dam at all seasons and wholly useless; that a large branch running south of his house some 600 yards, and nearly parallel with his south boundary, is backed up at all seasons, beyond, but not on his land south of him; that both the creek and branches, at times in the summer season, smell offensively, and are stagnant, and oc-covered with a filthy unhealthy scum; that plain* resided at the place in question two or three years before' the dam was built, and made permanent improvements for a residence, his mansion being three-fourths of a mile east of Muddy Creek; that the value of his land is lessened by the dam; that some persons would not purchase a place so situated for fear of the disease which such a pond might generate; that there had been a crossing of the creek' on plaintiff’s land, useful to give him access to his land on the opposite side, which is obstructed by the back water; and that the dam had been constructed for an eight feet head. The plaintiff also produced and read the record of a former recovery for the same nuisance.
    The defendants proved by several witnesses, that the plaintiff’s land was as much overflowed before as since the building of the dam; that he had had more sickness in his family before than since, and not more than common beyond the influence of the pond; that five or six years ago, the surrounding country was very sparsely settled, that within three or four years it had been rapidly and very thickly settled, and much clearing of land and deadening of timber had been done in the neighborhood; that plaintiff’s bottom land was Worth but little, being cold and wet, with only here and there narrow strips of good land, too little to be fit for cultivation; that it was worth more since the building of the mill than before, on account of the facility of preparing the timber for market, in which the chief value of the land consisted; that the pond overflowed very little of the land, and that only occasionally, in a cold wet place, at the head of two sloughs; that the springs mentioned are in the bed of the creek, three or four inches above the low water mark of dry seasons, and were' of no value to plaintiff, and had never been used by him, and were covered by the creek except in the lowest stage of the water, and were then covered by any little swells; that Muddy Creek was a full, sluggish stream, choaked with fallen timber and drift, that in the opinion of plaintiff’s family physician, the pond had not affected the healthiness of his residence, but would be likely to do so if the growing timber intervening between the house and pond were to be removed; that stagnant water on the south of a dwelling was morn likely to produce disease than on the north; that the could be as easily bridged since, as before the raising of the pond;- that the land of plaintiff on the west side of the creek could not be used by plaintiff without a bridge, though the pond were not there; and that the plaintiff never had in fact used the land on that side. This was all the testimony.
    His Honor charged the jury that every man must use his own property, so as not to injure that of his neighbor; that any building or erection, which, owing to its contiguity, is a continued injury to the health of another, having a prior occupancy, and which abridges the enjoyment of his property, is a nuisance for which the injured party has a right of action, if it be not removed upon request; that the law is the same in a new, as in an old settled country; that the measure of damages for such injury was whatever the jury might think reasonable; that no man has a right to convert the property of another to his own use, without his consent, as by diverting the water on his own land so as to overflow the land of another, creating thereby a mill dam, or head of water on another’s land for his own use; that the previous verdict and judgment were prima facie evidence of the plaintiff’s right-io recover for a continuance of the wrong; that as the main object of the law was the removal of the cause of complaint, in an action for a continuance of the nuisance, the jury might, at their discretion, increase the damages so as to produce that result; but that the effect of such prima facie evidence might be removed by other evidence, of which they were to judge.
    The jury found the defendant guilty, and assessed the plaintiff’s damages to $115. The defendant moved for a new trial, which was refused, and he thereupon filed his bill of exceptions, setting forth the above statement of the case, and prayed an appeal in error.
    H. G. Smith, for Neal and Shelton,
    to show the limitations to which the maxim, sic utere tuo, ut alienum non Ice-das, is subject, in its application to such cases as this, cited Platt vs. Johnson, 15 Johnson, 213: and Panlon vs. Holland, 17 Id. 92, and Com. .Dig. Action on the case for Nuisance, C., and he insisted that it appeared from these authorities, that the maxim does not operate upon cases where the cautious and prudent exercise of a lawful right by one person occasions damage to another; that in an unsettled country, a man who purchases and improves a building site contiguons to a mill site, cannot complain if the owner of the latter apply it to its appropriate purpose, in a reasonable man-> ner and without malice or negligence; and that in such coun-> try, if a man purchase real estate, and improve it by building a dwelling house thereon, in contemplation of law, he purchases with reference to a change of the condition of the country, and to the uses to which subsequent neighboring purchases will reasonably put their property. 12 Mass. 220.
    April 9.
    John Brown, for the defendant in error,
    said that the verdict of the jury was sustained by the proof; that there having been a previous verdict and judgment for this same cause of action, the jury might have found examplary damages, which however they had not done, 12 PetersdorfF, 799, note; that the finding of the jury was consistent with the charge of the court, which itself was sustained by the law, 2 Starkie’s Ev. 541: 12 PetersdorfF, 791, 799, note: and that this court would not disturb, the verdict, which pronounces that the facts proved amount to a nuisance, though in its opinion they might not, 12 PetersdorfF, 794: since, in truth, the question submitted to the jury was one purely of fgcts.'
   Reese, J.,

delivered the opinion of the court.

The defendant in error brought this suit to recover damages for the continuance of an alleged nuisance, damages having been recovered by him in a former action, upon the same ground. He obtained a verdict, and a judgment thereon was rendered in his behalf; to reverse which the plaintiffs in error have prosecuted an appeal to this court. The nuisance al-ledged is, that a mill dam of the plaintiffs’ in error, by them erected and kept up, on a stream below the residence of the defendant in error, is so located as to overflow the grounds of the defendant in error; to cover up and render useless certain springs of flesh water, and to create in the neighborhood of bis residence, ponds of stagnant water, injurious to the health of his family.

Note. — For a very complete and satisfactory collection and classification of the cases upon this branch of the law, which is becoming- every day more and more important in this country, see Angelí on Watercourses. The fourth chapter treats of the particular brand} of the subject considered in this case, As to the relative rights of the proprietors of mjll sites upon the same stream see Bigelow vs. Newell, 10 Pickering, 348. Whether a lower proprietor on a stream may raise a dam, so as to obliterate and submerge a fall higher up, and thereby prevent the erection of a mill on a suitable site'J is a question which is left undetermined. The case decides that where an upper proprietor has actually built, or is building a mill thereon, a lower proprietor cannot, without a right acquired by grant, prescription, or actual use, erect a new dam, or raise an old one, so as to destroy the upper mill privilege, simply under a liability to pay damages. 10 Pick. 357.

Evidence was heard by the jury tending to establish the truth of these several allegations.

It is insisted here, that the construction of a mill, upon a site adapted to such an end, is an appropriate use of the owner’s property, in the enjoyment of which he cannot be restrained by his neighbor, upon the ground that such use is inconsistent with the proper use and enjoyment, by the latter of his property; and that therefore the accumulation, by means of a dam, of a large pond of stagnant water, near die premises of another, affecting the health of his family, so as to render his dwelling not safely habitable, does not constitute an injury, for which he can have redress by action in a court of justice.

To this proposition we cannot assent. Every individual, indeed, has a right to make the most profitable use of that which is his own, so that he does not injure others in the enjoyment of what is theirs. And it is conceded also, that if one, in the cautious and prudent use of property, in a manner appropriated to its nature and character, produce some annoyance to his neighbors, such person, though sustaining some loss, has suffered no legal injury which can be redressed. But to dam up a stream, and create pools of stagnant water upon, or near to, the premises of another, poisoning the atmosphere, generating disease, and impairing the enjoyment of that most valuable of absolute rights, health, cannot be called the cautious and prudent use of property in an appropriate manner. To do so is to violate the injunction, sic utere tuo ut alienum non leudas.

Of the facts establishing the nuisance, and of the extent of the injury, the jury are the proper judges. There seems to be no want of evidence to sustain their verdict, nor any error in the charge of the court, and the judgment, therefore, will be affirmed.

The facts in this case are stated at large with a view of showing that the case is an authority, that merely overflowing the land of an upper proprietor, is an actionable injury, since it will be seen that the evidence is pretty equally balanced as to the Joss or damage occasioned the plaintiff by the inundation. — Reporter.  