Miller and Another v. Stowman. tion for crime committed, but a proceeding to prevent the commission thereof. The court below was not asked to charge that this was a criminal proceeding. The judgment is affirmed, with costs. G. D. Teter, for appellant. D. E. Williamson, Attorney General, for the State. MILLER and Another v. STOWMAN. MILL-DAM.-Where the owner of a mill has not obtained the right by grant, prescription or license to flow water upon the lands of another, such flowing is an illegal act, and the continuance of the wrong for a period of fifteen years, without complaint, does not create a right. Page 149. SAME. WRIT OF ASSESSMENT OF DAMAGES.-The statute providing for the writ of assessment of damages denies the privilege of the writ where the effect of granting the application would be to flow water back upon, or divert it from, any mill or mill works already erected, or in process of erection. Page 152. APPEAL from the Miami Circuit Court. ELLIOTT, J.-This was a proceeding under the statute by "writ of assessment of damages," commenced in the spring of 1865, by Levi Miller and Isaac Miller, the appellants, against Charles Stowman, the appellee, and others. The complaint alleged, inter alia, that the plaintiff's were the owners of certain lands, which are particularly described, situated on both banks of Eel river, on which were situated a valuable grist and flouring mill, also a saw mill, of great public utility, the machinery of which was propelled by water from Eel river, by means of a dam across said stream, immediately above said mills, of the height of four feet and six inches, erected in 1844; that the appellee, Stowman, was the owner of certain lands on said stream, Miller and Another v. Stowman. above and adjoining the plaintiffs', which are also properly described by metes and bounds; that said dam, when maintained at the height of four feet and six inches, causes the water to flow back in said stream on a part of the lands of Stowman, &c., and praying that the damages sustained by Stowman may be assessed by a jury, under the provisions of the statute. A proper writ was issued and a jury impanneled, who returned a finding assessing damages in favor of Stowman. The finding of the jury, so far as it relates to the questions presented for our decision, is, in substance, as follows: That the raising and maintaining of the plaintiffs' dam to the height of four feet and six inches will flow the water back in said river, at the ordinary medium stage of water therein, up to a point on the lands of Stowman twenty rods above. where the section line between sections 29 and 30 crosses the same, being about twenty rods up the river, above the mouth of a stream called Spring-brook; that said Stowman was the owner of a mill and mill-dam on his own lands, situated on Eel river, above the dam of the plaintiffs, and that he also owned a mill seat on said river, below his then present mill, and about twenty-seven rods below the dam thereof; that he had made certain excavations upon said mill seat, preparatory to using the same and the water power thereon, and had provided certain materials for a new mill, but that he subsequently quit said work and sold a part of said materials; that said mill seat would be materially injured by the water flowed back in the river thereon, by the dam of the plaintiffs being raised and maintained at the height of four feet and six inches. The jury thereupon assessed Stowman's damages by reason thereof, and to the excavation made for said new mill, and to his springbranch, at $1,400, and by the loss of timber and other materials furnished for the new mill $100. The jury further found that the old mill of Stowman's would not be in anywise affected or injured by the dam of the plaintiff being raised and maintained four feet and six inches high. Miller and Another v. Stowman. In the Circuit Court, the sheriff having made the proper return of the inquest with his proceedings, Stowman appeared and filed an answer of four paragraphs. A demurrer was sustained to the first paragraph, and the second was subsequently withdrawn. No question arises upon either of them in this court. The third alleges that he, Stowman, now is, and for fifteen years immediately preceding the commencement of this suit has been, the owner in fee simple, and in the possession, of the tracts of land alleged in the petition to be his; that he is the owner of a grist or flouring mill on said land, on the north side of said river, which is propelled by water taken therefrom, by means of a dam across the same, abutting his lands on each side; that said dam was erected in the year 1836, and has been maintained and kept up from that time to the present, by him and those through whom he derives title; that said mill has, during all that time, been one of great public utility, accommodating a large and thickly populated region of country that cannot so well be served by any other mill, and for a long time was the only mill within a circuit of many miles; that during the last fifteen years he has owned said mill and the water privileges of said stream upon his said land, which consisted of about five and onehalf feet of fall, and furnished at all times water sufficient to run a mill with four pairs of burrs, with all the necessary gearing and machinery, &c.; that his present mill does not use all of said power, or fall, upon said land, by about two feet; that he, said defendant, purchased said premises with the view and purpose of erecting a new mill upon the same, about two hundred yards below his present mill, and of using the water for propelling it from the present dam, by means of a race extending therefrom to the new mill, running all the way through his own land, and thereby, with the necessary fall for a tail race, using all the fall or power on his land; that with the view of erecting said new mill, he did, during the latter part of the year 1860 and early part of 1861, prepare and gather together upon said premises VOL. XXVI.—10. Miller and Another v. Stowman. a large amount of materials for the construction of a new mill house, and the machinery of a new mill, with four run or pairs of stones; that he commenced digging out the foundation for said mill, and while at work at it, and before its completion, to-wit: in the month of August, 1861, the plaintiffs raised their said dam, below that of the defendant, and on the same stream, so as to cause the water to flow back upon the premises of the defendant and fill said excavation, whereby the defendant was compelled to abandon said work; that immediately thereafter, to-wit: on the 12th day of September, 1861, he brought suit in the Circuit Court against the plaintiffs for damages, for backing water on his said mill site and premises by means of said dam, and praying that they be compelled to lower the same, &c.; that these plaintiffs, defendants in that suit, made defense, and claimed the right so to flow back the water upon this defendant's premises, and such proceedings were had in said cause that, upon the final hearing thereof, at the March term, 1864, the court found that the plaintiffs did, by means of their said dam, flow the water back and upon the premises of this defendant; that they had no right so to do, and assessed damages in favor of this defendant up to the commencement of that suit, but made no decision in relation to lowering said dam, which judgment and decision remain in full force; that said plaintiffs have ever since kept up their said dam to such a height as to flow the water back upon said premises of the defendant, and into the foundation of his new mill, so that he could not, without great inconvenience and expense, erect his said new mill; that immediately after the decision of that case, and before the defendant had time to prepare for the completion of said mill, to-wit: on the 17th day of June, 1864, the plaintiff's instituted this suit for the assessment of damages; that should the plaintiff's be permitted to sustain the same as prayed for, it will certainly destroy the defendant's new mill works, and the additional power that he was improving and intending to use at that point. Miller and Another v. Stowman. The fourth paragraph is substantially the same as the third, omitting the allegations in reference to the recovery of damages in the suit by the defendant against the plaintiffs for overflowing the pit, &c., for his new mill, and averring that the new mill when erected will be of great public utility, and will accommodate a large neighborhood that cannot be so well accommodated at any other mill, and that it is his purpose to complete said mill as soon as it can be done after this suit is terminated. The court overruled a demurrer to these paragraphs, to which ruling the plaintiffs excepted. The plaintiffs then replied in four paragraphs. The first was a general denial, but was subsequently withdrawn. The second paragraph admits Stowman's title, but alleges that he purchased his lands, mill, &c., long after the erection of the plaintiffs' dam and mill works, and with full knowledge thereof, and of the extent to which said dam backed the water up said stream, and on the lands so purchased by Stowman; that the particular tract of land on which Stowman contemplates building a new mill was purchased by him long after he purchased the old mill property, and long after the plaintiff's dam was erected, and the water in said stream flowed back, &c.; that no foundation for a mill can be had at the place where Stowman commenced excavating therefor, for the reason that the bank of Eel river at that point is composed of gravel and quick-sand; that the purpose of the defendant, in the purchase of the tract of land last purchased by him, and in the excavation made and materials furnished, was not to improve his mill privilege and accommodate the public, but to harass the plaintiffs and destroy their valuable mill works, &c. The third paragraph sets up that when Stowman purchased his land and water privileges, they were improved by a dam and flouring mill situated thereon, erected in 1836; that said dam and mill occupy the only places therefor on Stowman's land; that where the mill now stands, Stowman has sufficient power, with his present dam, only two feet high, to grind |