1. In a suit for damages for ponding water it appeared that the plaintiff sustained injury to his mill by reason of the defendants erecting another mill and dam lower down on the same stream. Held, that the measure of damages was the value of the injury actually sustained by the plaintiff at the time of the trial, and in estimating the same, the decrease of custom (in the matter of toll) could not be considered; and that evidence to show how much it would have cost the plaintiff to raise his dam and water-wheel to escape the injury complained of was properly excluded. Burnet v. Nicholson, 86 N. Car. 99. So Decorah Woollen Mill Co. v. Greer. 49 Iowa, 490; Hovey v. Perkins, 63 N. H. 516; Town v. Faulkner, 56 N. H. 255; Phinizy v. Augusta, 47 Ga. 260; Robertson v. Woodworth, 42 Conn. 163; Halsey v. L. V. R. Co.. 45 N. J. L. 26; Harding v. Funk, 8 Kans. 315; City of Chicago v. Huenerbein, 85 Ill. 594; s. c., 38 Am. Rep. 626; Janssen v. Lammers, 29 Wis. 89; Chalk v. McAlily, 11 Rich. (S. Car.) 153; Howe v. Ray, 113 Mass. 90.

In Taylor v. Keeler, 50 Conn. 346, it was decided that where a mill-owner alleged that, by reason of the erection of a dam below, the water backed upon his wheel and stopped it, and it was proved that the water flowed his land, but did not reach his wheel, he could receive no damages for flowage, since none were alleged.

Although the act of 1803 in Pennsylvania took away the common-law remedy of abatement, it did not take away the right to a common-law action for damages. Gould v. Langdon, 43 Pa St. 365. All of the mill-dam acts of the several States provide for the assessment of damages, providing that the jury shall assess the actual damage. Several of them distinctly provide that punitive

damages shall not be imposed, while those of Connecticut and New Hampshire add fifty per cent to the amount assessed. See notes to sec. 3, supra.

Under the Missouri law persons building dams otherwise than under the statutory provisions of the State, are liable to double damages to the party injured. Rev. Stat. (1879), § 929.

Under the North Carolina statute relating to ponding water, damages are to be assessed separately for each year. Goodson v. Mullen, 92 N. Car. 207. And an issue involving the amount of annual damages done is a proper one to be submitted to the jury. Hester v. Broach, 84 N. Car. 251.

And in an action before a justice under the Mississippi statute the judgment of the justice is final, but he cannot award costs. Lagrove v. Trice, 57 Miss. 227.

2. Geise v. Green. 49 Wis. 339: Oliphant 2. Smith, 3 Penrose & Watts (Pa.), 180; Worster v. Winipiseogee Lake Co., 25 N. H. 477; Brown v. Bowen, 30 N. Y. 519; s. c., 86 Am. Dec. 406.

Under the Wisconsin act, where lands lying in one county were overflowed by a dam in another, an action for the injury might be brought in the former county. Lohmiller v. Indian Ford Water-power Co., 51 Wis. 683.

So an action may be maintained in Massachusetts for diverting a stream in that State, and preventing it from coming to the plaintiff's mill in Rhode Island. Mannville Co. v. City of Worcester, 138 Mass. 89; s. c., 52 Am. Rep. 261. See Stillman v. White Rock Mfg. Co.. 3 Woodb. & M. (U. S. C. C.) 538. But where the complaint is for flowage of several parcels of land in different counties by the same dam, it may be brought and all the damages recovered in either county. Bates v. Ray, 102 Mass. 458.

DAMAGE.—To injure.2

1. Decorah Woollen Mill Co. v. Greer, 49 Iowa, 490; Lawson v. Menasha Wooden-ware Co., 59 Wis. 393: s. c., 48 Am. Rep. 528; Adams v. Manning, 51 Conn. 5: Prentiss v. Wood, 132 Mass. 486; Halsey v. Lehigh Valley R. Co., 45 N. J. L. 26. As to rights of joint owners, see Townsend v. McDonald, 14 Barb. (N. Y.) 460.

So a mill-owner whose mill is benefited by the reserve of a reservoir dam erected upon his land, is subject to the provisions of the Maine statute, though there are other mills benefited by the same reservoir. Dingley v. Gardiner, 73 Me. 63. But the owner of a mill cannot recover damages from higher owners for making too great and profitable use of their water-power by their expensive machinery and well-constructed works, to his detriment, when he is making too little use of his own power for want of its improvement. Caldwell v. Sanderson (S. C. Wis., June 1, 1887), 33 N. W. Rep. 591.

Many of the States have statutes declaring the wilful and malicious destruction of a mill-dam a misdemeanor, or providing special penalties for such acts. Codes and Statutes of California (1876), $13.607: Connecticut Laws of 1875, p. 6; Code of Georgia (1882) § 4611; Rev. Stat. Idaho (1887), § 7162: Rev. Stat. New York, 7th Ed., p. 2520; Comp. Laws Utah (1876). p. 640, 349; Code Washington 7y. (1881), 842; Comp. Laws Wyoming (1876), p. 278, § 151; Rev. Stat. Illinois (1887), p. 485, 197; Rev. Stat. Indiana (1881). 1967; McClain's Annotated Statutes Iowa, 3978; Gen. Stat. Kentucky (1881), pp. 327, 328; Stats. of Minnesota, p. 309. 26; Rev. L. Vermont (1880), § 4198; Howell's Annotated Statutes Michigan (1882). SS 9127 and 9168; Pub. Stat. Rhode Island (1882), p. 678, § 35; Rev. Stat. Wisconsin, § 4439. In Kansas ma

licious destruction of a dam, or the erection of a dam on a stream previously occupied, so as to injure the former proprietor, is a misdemeanor. Dassler's Comp. Laws (1881), § 1851. Massachusetts has

a similar act, but the latter part does not apply when the State has power to abate the dam. Pub. Stat. (1882), p.

1149.

Lumber put into streams and lodged upon lands adjoining or on dams crossing the stream must be moved by the 1st of May. If not, the owner of lands or dam may detain till damage is paid. S 3239, 3240.

Persons floating logs, etc., over dams must give security in such sums as will protect the owner of such dams against all loss and damage that may be done by the parties floating logs across said dam. Laws of Tennessee, 1883, p. 265.

Authorities on Dams. -Angell on Water Courses (7th Ed.); Washburn on Easements (4th Ed ); Washburn on Real Property (5th Ed.); Pomeroy on Riparian Rights (Black's Ed., 1887); Note to McCoy v. Danley, 57 Am. Dec. 680.

2. Taking away a part of a stockingframe so that it will not work is damaging it within an act making it felony to break, destroy, or damage such frames. R. v. Tracy, Russ. & R. 452.

A non-adjacent property-holder is not entitled to damages under an act providing for compensation "when property is damaged by the vacation or closing of any street," where by the vacation egress and ingress is not affected, and the damages suffered consist of mere inconvenience common to the general public. Nor is such vacation a taking or damaging within a constitutional provision that private property shall not be taken or damaged for public use without just compensation. E. St. Louis v. O'Flynn (Ill.), 10 N. E. Rep. 395.