in his action at law injuries to his meadows; nor will equity enjoin such an injury; for these he must proceed under the Act.1 On the other hand, the Delaware statute of 1773, for the encouragement of mill-owners, which gives them a summary remedy for damages occasioned by the erection of other dams, has reference to the location of new mill-sites, and is held not to apply to a change in the construction of dams already erected. For injuries by such changes the common-law remedy must be pursued.2 § 584. For all injuries caused by persons proceeding under such statutes, but acting in excess of their authority, the common-law actions lie. So where the height at which a dam may be inaintained has been determined by proceedings under the Mill Acts, any injuries caused by maintaining the dam at a greater height are unauthorized and remediable at common law. So if the right to flow lands is limited to purchase or holding of land, with the declared intention to build a mill in the future, does not entitle the holder to the protection of the statutes, but the collection of machinery and materials, and excavation of a foundation, is sufficient to entitle him to the protection of the statute. Miller r. Stowman, 26 Ind. 143; Larsh v. Test, 48 Ind. 130. Any bona fide improvement of a water-power, with intent to use as such, makes it a "power previously improved" 'under the Minnesota statute. Miller v. Troost, 14 Minn. 365. The Missouri statutes formerly contained no provision protecting existing mills. In Hook v. Smith, 6 Mo. 225, it is held that where conflicting applications are made on the same day, or within a few days of each other, the court may exercise its discretion and grant permission to the one which will cause least damage to the public or individuals. The present statute gives the court power, on petition of the owner of any existing mill, to restrain such injuries. 2 Mo. Rev. Sts. (1879), § 6437. In a late 3 Johnson . Kittredge, 17 Mass. 76; Winkley . Salisbury Manuf. Co., 14 Gray, 443; Leonard r. Wading River Co., 113 Mass. 235; Brady v. Blackinton, 113 Mass. 338; Arimond r. Green Bay Co., 31 Wis. 316. See Hiscox r. Sanford, 4 R. I. 55, where the height was determined by contract. If the defendant increases the height of his dam in order to enlarge his mill, or to supply a new mill with power, this is in effect a new taking under the certain seasons of the year, and the person using the mill flows the lands at other seasons, he is liable as a wrong-doer.1 So where the Act authorizes dams across unnavigable streams, a dam across a navigable stream is in no way entitled to the protection of the Act.2 So, where a dam is maintained by the defendants for the use of a mill not owned by them, nor situated on their land, it is not within the provisions of the Mill Act of Maine, and the common-law actions will lie for an injury caused by such a dam.3 So, an obstruction of the public use of a stream, as a water-way for rafts and timber is unauthorized by the Acts. The mill-owner may dam streams available for such transportation, but must keep a suitable passage-way for boats and rafts; and for injuries to this use the common-law remedies may be maintained. So it is held in Massachusetts that the Mill Act does not authorize the flowage of a public highway already appropriated and in actual use; and for such flowage an action at law may be maintained, or an indictment will lie. So, if statute, and the statutory method must be pursued. Johnson v. Kittredge, 17 Mass. 76; Leonard v. Schenck, 3 Met. 359. A charter giving the right to erect a dam on the company's own land gives no right to flow the land of others without their consent. For such flowage the common-law actions lie. Company v. Goodale, 46 N. H. 153. 1 Hill v. Sayles, 12 Met. 142. The plaintiff in this case afterwards recovered damages in a second action for a repetition of the injury. 4 Cush. 549; and then was granted an injunction against such unauthorized flowage. 12 Cush. 454. On the appeal in the first case, Shaw, C. J., said (12 Met. 150): "By the rule of the common law, the land-owner has a right to have the natural watercourse kept open the whole time. By the statute, and the proceedings under it, the mill-owner has acquired a right to keep his dam up a certain part of the time, paying a certain amount of damage. For the residue of the year the land-owner remains in the enjoyment of his common-law right, and is entitled to his common-law remedy for the infringement of it." 2 Bryant v. Glidden, 36 Maine, 36; Strout v. Millbridge Co., 45 Maine, 76. See, also, Renwick . Morris, 7 Hill, 575, where a statute authorized a person to maintain a dam in a navigable river, and the dam was so built as to obstruct the navigation beyond what the Act authorized. It was held a public nuisance, and liable to abatement pro tanto by any one, though it had stood for more than twenty years. 8 Crockett v. Millett, 65 Maine, 191. 4 Veazie v. Dwinel, 44 Maine, 167; Veazie v. Dwinel, 60 Maine, 479; Knox v. Chaloner, 42 Maine, 150; Treat v. Lord, 42 Maine, 552; Parks v. Morse, 52 Maine, 260; Lancey r. Clifford, 54 Maine, 487. 5 Commonwealth 2. Stevens, 10 Pick. 247. To same effect under the Kansas statute, see Venard v. Cross, 8 Kansas, 248, where an injunction was granted. a mill is abandoned, and the right to flow lost, and a highway is laid out over the land formerly flowed, the highway gains the prior right; and if the mill-owner or his grantee injures it in attempting to re-assert the right to flow, he is liable to indictment.1 In reality any maintenance of the dam apart from the public benefit gained from the mill provided with power thereby, is unauthorized. So, if the millowner abandons his mill, but maintains his dam, he is liable at law to those injured.2 § 585. If a mill-owner makes a canal leading water into another's land, this is not within the protection of the Massachusetts statute.3 So trespasses in the construction of a dam or boom are not within the scope of the statutory remedy, and are actionable wrongs. So where the provisions of the Mill Act were extended, so as to include the taking of waters to furnish a water-supply to cities and 1 Commonwealth v. Fisher, 6 Met. 433. So the remedy of a town against a mill-owner for overflowing a road which the town is obliged to repair, and does repair, is by action on the case and not under the Mill Act. Andover v. Sutton, 12 Met. 182. St. 1873, c. 144 (Pub. Sts. c. 190, § 42), establishes a proceeding by which a mill-owner can acquire the right to flow a highway. For the details of this procedure, see infra, the sections on Remedies under the Mill Acts. See a similar provision in Minnesota, Gen. Sts. 1878, c. 31, § 23, p. 331. 2 French v. Braintree Manuf. Co., 23 Pick. 216; Hodges v. Hodges, 5 Met. 205; Fuller v. French, 10 Met. 359. Mere disuse of a canal by a canal-company and a sale of its mill properties, reserving all rights necessary for the preservation and use of the canal, is not an abandonment. Heard v. Talbot, 7 Gray, 113. North Carolina Mill Act provides for acts done on the defendant's own land. Battle, N. C. Rev. St. c. 72, §§ 13 et seq. It would be a proper exercise of legislative power, however, to authorize an entry on another's land for the purpose of erecting a boom or dam, upon proper conditions as to compensation. Per Parsons, C. J., in Perry v. Wilson, 7 Mass. 393. In Pennsylvania, an Act authorizing persons to maintain dams and obtain control of the channels of streams, for the purpose of floating lumber and rafts to market, has been construed to authorize such acts only by public companies. Where individuals, acting for their private benefit, erected a temporary dam for such purposes, which they used in such a way as sometimes to cut off the water from the plaintiff's mill, and at other times flooded out his wheel, and injured his dam, by driving logs upon it, the 3 Fiske v. Framingham Manuf. Co., court held that the plaintiff's remedy 12 Pick. 68. was at common law and not under the statute. Finney r. Somerville, 80 The Penn. St. 59. Perry v. Wilson, 7 Mass. 393; Henley . Wilson, 77 N. C. 216. towns, this extension was held not to imply a grant of power so to take water; and where the defendant diverted a stream in order to carry out a contract to supply a town with water, such diversion was enjoined. So under the Virginia system of Acts, if the order granting permission to build the dam is obtained without notice to the person in possession of the lands to be taken, or without adjudicating his rights, his right to possession will be unaffected and he may have a writ of forcible entry and detainer. So where a permission was granted to erect a dam with the condition that it should not be so maintained as to cause injury to a certain ford, a declaration in case for raising the dam so as to violate this condition, to the injury of the plaintiff, was held good.3 § 586. Similarly the common-law remedies lie for injuries caused by persons who proceed under the authority of such Acts, but fail to comply with their requirements. If a Mill Act imposes conditions precedent to acquiring the right to flow, they must be strictly performed by one claiming the right, or he is liable as a wrong-doer. So, if the claimant fails to make compensation at the time and in the manner determined by the act or proceedings, or to give the security required for the payment of future damages, or to perform the other duties imposed on him, he forfeits his rights under the Act, and renders a further maintenance of the dam 1 Howe . Norman, 13 R. I. 488. The extension was held to be simply of the procedure under the Mill Acts to control the taking for such purposes when the right should be granted. The Mill Act of Mississippi has been held not applicable to injuries caused by a ditch and levee. Price v. Lagroue, 57 Miss. 839. 2 Wolf r. Coffey, 4 J. J. Marsh. 41. 3 Hardy . McNeil, 8 B. Mon. 449. 4 A strict compliance with the statutory method of procedure is a condition precedent to the acquisition of rights. A failure to follow the statu tory method renders the mill-owner liable as a wrong-doer. Hunting v. Waterman, 10 Iowa, 152; Akin v. Davis, 11 Kansas, 580. So the writ must be sued out before building the mill and dam. A writ sued out afterwards was formerly held ineffectual. Smith v. Olmstead, 5 Blackf. 37; Summy . Mulford, 5 Blackf. 113; s. c. 202. See a similar opinion in Alabama. Hendricks r. Johnson, 5 Porter, 208. Contra, see Wright v. Pugh, 16 Ind. 106; and Ind. Rev. Sts. 1881, § 883, pl. 9. 5 Stowell. Flagg, 11 Mass. 364. a nuisance to be restrained or abated in equity.1 This rule applies to persons purchasing from the claimant subsequent to the proceedings. They take subject to the duties imposed.2 § 587. Injuries unforeseen and unprovided for constitute another class for which the common-law remedies survive.3 The Virginia Mill Act, and several of the statutes modelled upon it, contain clauses expressly saving existing remedies for injuries not actually foreseen and estimated upon the inquest.* These Acts also provide that permission shall not be given to erect dams which will cause injury to health. So where a dam duly authorized, and found by the inquest not likely to injure 1 Ackerman v. Horicon Iron Co., 16 Wis. 150; Zweig v. Horicon Iron Co., 17 Wis. 362; s. c. 20 Wis. 40; Akin v. Mills, 29 Wis. 322; Arimond v. Green Bay Canal Co., 31 Wis. 316; s. c. 35 Wis. 41; Wight v. Packer, 114 Mass. 473; Kirkendall v. Hunt, 4 Kansas, 514. See, also, Hill v. Sayles, 12 Cush. 454, cited above. In New Hampshire, as we have seen, the statute of 1868 is interpreted by the aid of the constitution to require the claimant to make compensation before the land is flowed, and not to take away the common-law remedies until after an assessment and judgment are had under the Act, and payment or tender of the amount. Ash v. Cummings, 50 N. H. 591. Newell v. Smith, 26 Wis. 582. On the In Wisconsin, it is held that judgment may be given in the alternative, 4 Va. Code, 1873, Title 19, c. 63, upon proper allegations and proofs, § 11; Miss. Rev. Code, 1880, § 932; 2 for the payment of compensation and Mo. R. S. 1879, § 6435; Iowa Rev. Sts. establishment of the right to main- 1882, § 1201. See Ind. Rev. Sts. 1831, tain the dam; or, on non-payment, for c. 1, § 8; Ind. Rev. Sts. 1881, § 1859. the abatement of the dam. Cobb v. 5 Ala. Code, 1876, § 3564; Ark. Smith, 38 Wis. 21. In an action to Rev. Sts. 1874, § 4225; Fla., McClelabate for non-payment of compensa- lan's Dig. c. 152, § 6; Ill. Rev. Sts. tion, it is not necessary to join the 1881, c. 92, § 1; Ind. Rev. Sts. 1881, § mill-owner's grantees of the use of the 887; Ky. Rev. Sts. 1879, c. 77, § 4; Miss. water; but such grantees may be Code, 1880, § 928; N. C. St. 1873, c. 72, made defendants at their request, § 9; Va. Code, 1873, Title 19, c. 63, § and by payment of the compensation 6; 2 West Va. St. 1879, c. 91, § 31; they may prevent an abatement. 2 Tenn. St. 1871, § 1920. |