Wentworth v. Poor

Tenney, J, — The plaintiffs were the owners of a saw-mill, dam, and mill-site, from March 10th, 1845, to Feb. 17th, 1849. Upon this site a saw-mill had been erected, and continued from 1826 to the time of the commencement of this action. In 1844 a saw-mill was erected upon a mill-site on the same stream and about two rods above the plaintiffs’ mill; and this saw-mill and mill-site were purchased by the [246] defendants, and they continued to occupy it till this suit was commenced. Under the evidence adduced, and the instructions given, the jury must have found that by reason of the improved machinery in the defendants’ mill, less water was required to carry it than was necessary to carry the machinery in the plaintiffs’ mill; and in consequence thereof the latter was rendered less beneficial and profitable than it was before the defendants’ mill and machinery' were put in operation. The plaintiffs, by becoming the owners of the mill, dam-, and site occupied by them, succeeded to the rights of those from and through whom their title was derived, and can recover for damages done to them during their ownership by the defendants, in the same manner as could have been done by those who first erected and owned the same, had they continued to hold and to occupy it. The Revised Statutes, in c. 126, § 2, provides that no dam shall be erected to the injury of any mill lawfully existing above or below it on the same stream ; nor to the injury of any. mill-site on which a mill or mill-dam shall have been lawfully erected and used, unless the right to maintain a mill on such last mentioned site shall have been lost or defeated by abandonment or otherwise. The plaintiffs, by the case, are not brought within the exception in this provision, and the instructions were in accordance with the statute. Baird v. Wells, 22 Pick. 312. Exceptions overruled. Howard, Hathaway, and Appleton, J. J., concurred.