floating logs through the plaintiff's mill-dam and flume at a stipulated price, and agreed to repair and pay all damage done, it was held that case would lie for damage carelessly and negligently done to the plaintiff's dam. The action on the case is the proper remedy for the owner of property who is injured by the nuisance of projecting eaves or roofs of an adjoining building causing rain to overflow upon his land.2 § 374. Same. An action on the case lies for any wrongful diversion of water from a mill, or for any diversion or obstruction to the injury of a riparian proprietor, the damages 1 Dean v. McLean, 48 Vt. 412. Where the defendant had for several years flowed the plaintiff's land, paying an annual compensation therefor, under an oral agreement, it was held, in an action to recover damages for such flowage, that the relation of landlord and tenant existed between the parties, and that the plaintiff could maintain no action except for the yearly compensation, without giving notice to quit. Morrill v. Mackman, 24 Mich. 279. 2 Rolfe v. Rolfe, F Moore, 353, cited there in Beswick v. Combdon; s. c. cited, 5 Rep. 101; Penruddock's Case, 5 Rep. 101; Battishill v. Reed, 18 C. B. 696; Codman v. Evans, 7 Allen, 431: Whitney v. Sanders, 3 Pitts. 226; Gould v. McKenna, 86 Penn. St. 297. In Aikin v. Benedict, 39 Barb. 400, overruling Sherry v. Frecking, 4 Duer, 452, it was held that trespass on the case or the statutory action for nuisance was the proper remedy for such an injury, and not eject ment. The erection of eaves projecting over another's land is a nuisance, for which case will lie without proof that rain has fallen since the erection. Fay v. Prentice, 1 C. B. 1828. See Bellows v. Sackett, 15 Barb. 96. But where the injury complained of is caused by rain thrown on his premises by such eaves, the injury must be proved as laid. Simmons v. Pol lard, 53 Vt. 343. It is held that the landlord of the injured premises may maintain a case as a reversioner for such a nuisance during the term, if the jury think the reversion is injured. Tuckerman v. Newman, per Lord Denman, C. J., 11 A. & E. 40. Compare Jackson p. Peskel, 1 M. & S. 234, where Lord Ellenborough held that injury to the reversion must be alleged in such case. See ante, §§ 292, 293. 3 So held in case of an ancient mill. Broome v. Mordant, Cro. Eliz. 112. See Ingraham v. Hutchinson, 2 Conn. 504. If the right claimed is that of an ancient mill, a prescriptive right must be shown. Platt v. Johnson, 15 Johns. 213. Mere inconvenience to an ancient mill by increase of rubbish in the stream gives no cause of action. Palmer v. Mulligan, 3 Caines, 307. Wrongful diversion from new mill. Dyer, 248b; Cox v. Matthews, 1 Vent. 237. An injury by a dam, causing a growth of grass in a stream, which impedes its flow, is actionable in case, unless the grass would have grown without the dam. Knoll v. Light, 76 Penn. St. 268. 4 Wright v. Howard, 1 Sim. & Stu. 190; Mason v. Hill, 3 B. & Ad. 304; s. c. 5 id. 7; 3 Kent Com. 442; Meyer v. Horst, 106 Penn. St. 552; Martin v. Bigelow, 2 Aik. (Vt.) 184. being computed to the date of the writ; and if the defendant has the right to maintain a dam at a certain height, or at a certain point in a river, the action will lie against him for wrongfully increasing the height,2 or for constructing the dam and causing flowage at another point on the river. So the action lies if a person, having a preferred right to the water, uses it wrongfully to the injury of one entitled to the surplus.+ So, if water is accustomed to flow to a well and thence to one's house for his use, and one diverts the stream from coming to the well. If one disturbs the plaintiff in the use of his well by putting rubbish therein, case will lie if the water is shallowed and rendered less convenient for use." § 375. Same.-Case is also the appropriate remedy for the pollution of a watercourse to the injury of another. It was decided, in a case reported in the Year Books, that if two several owners of houses have a river in common between them, which one corrupts, the other shall have an action upon the case; and the action has been allowed without question ever since. So, if one abandons waters artificially collected, and turns them into a natural stream, he cannot afterwards. reclaim them; and if he attempts to withdraw them from the 1 Williams v. Camden Water Co., the case are: Wood v. Waud, 3 Exch. 79 Maine, 543. 2 Phillips v. Sherman, 64 Maine, 171; Sackrider v. Beers, 10 Johns. 241; Merritt v. Brinkerhoff, 17 Johns. 306. So where the defendant (maintaining a dam under the Mill Acts) wrongfully closes his gates at night to collect water, the remedy is in case. Thompson v. Moore, 2 Allen, 350. 3 Davis v. Mattawamkeag L. D. Co., 82 Maine, 346. 748; Stockport W. W. Co. v. Potter, 3 H. & C. 300; Norton v. Scholefield, 9M. & W. 565; Hodgkinson v. Ennor, 4 B. & S. 229. See Cator v. Lewisham Board, 5 B. & S. 115; Locks & Canals v. Lowell, 7 Gray, 223; and Mills v. Hall, 9 Wend. 315; Thomas v. Brackney, 17 Barb. 655; Carhart v. Auburn Gas Co., 22 id. 297: O'Riley v. McChesney, 3 Lans. 278; Merrifield v. Worcester, 110 Mass. 216; Wood 4 Batavia Manuf. Co. v. Newton ward v. Aborn, 35 Maine, 271; WashWagon Co., 91 Ill. 230. 51 Com. Dig. Title Action upon the Case of a Nuisance (A.); Prickman v. Tripp, Skin. 389. 6 Taylor v. Bennett, 7 C. & B. 329. 7 Y. B. 13 H. 7, 26, cited in Co. Litt. 200 b. 8 Ante, SS 219-223. Leading cases illustrating the use of the action on burn v. Gilman, 64 id. 163; Wheatley v. Chrisman, 24 Penn. St. 298; LittleSchuylkill Nav. Co. v. Richards, 57 id. 142; Seely v. Alden, 61 id. 302; Sanderson v. Penn. Coal Co., 113 id. 126; 86 id. 401; s. c. 94 id. 302; Snow v. Parsons, 28 Vt. 459; Gladfelter v. Walker, 40 Md. 1; Story v. Hammond, 4 Ohio, 376. stream, he is liable in case to any one injured thereby.1 Where the canal commissioners of Illinois turned the surplus water of a certain canal into a natural stream to get rid of it, and so increased the volume of the stream, and their lessee, succeeding to their rights, diverted a portion of the water from the stream to drive his mill, and returned it to the stream below the plaintiff's mill, thereby diminishing the volume of water at the plaintiff's mill, it was held that the plaintiff could maintain case.2 § 376. Parties plaintiffs.-Actions for torts affecting rights in water, and also for torts done by means of water, must in general be brought in the name of the person whose legal right has been affected, and who had a legal interest in the property injured at the time the injury was committed. For any injury affecting the present enjoyment of water-rights, the person entitled to the present enjoyment thereof is the proper party to bring the suit; but for any permanent injury to such rights the reversioner may maintain an action. The same rule holds true of all injuries to real property by means of water." The remedies of the tenant in possession and the reversioner may be concurrent. The act which injures the reversioner usually injures the tenant in possession also, and each may maintain his action for the injury to his separate right. 1 Adams v. Slater, 8 Brad. (Ill. App.) 72; Druley v. Adams, 102 Ill. 177; see Davis v. Gale, 32 Cal. 26. 72. This 7, 26, cited by Wray, C. J., in Aldred's Case, 9 Rep. 59a; Bedingfield v. Onslow, 3 Lev. 209, Jackson v. Pesked, 1 2 Adams v. Slater, 8 Brad. (Ill. App.) M. & S. 234; Tucker v. Newman, 11 31 Chitty, Pleading, 69. That one who has entered under the United States homestead laws may sue, see Gulf, C. & S. F. Ry. Co. v. Clark (Ind. Ter.), 51 S. W. Rep. 962. 4 Mr. Dicey says (Parties, p. 332, note) that the term reversioner is used as a convenient though not strictly correct description of any person who, not being in possession of land, has a future interest in it. 51 Chitty, Pl. 63; Com. Dig. Action upon the Case for a Nuisance, B.; Dicey on Parties, 333, 340; Prior of Southwark's Case, Year Book, 13 Hen. A. & E. 40, Battishill v. Reed, 18 C. B. 696; Bell v. Twentyman, 1 Q. B. 766; Lord Egremont v. Pulman, M. & M. 404; Dobson v. Blackmore, 9 Q. B. 991. 61 Chitty, Pl. 63; Com. Dig. Title Action on the Case for a Nuisance, B.; 1 Wms. Saund. 322, note 5; Rust v. Victoria Dock Co., 36 Ch. D. 113; Dynevor v. Tennant, 13 A. C. 279; Bedingfield v. Onslow, 3 Lev. 209; Ripka v. Sergeant, 7 Watts & S. 9; Hart v. Evans, 8 Penn. St. 13; Seely v. Alden, 61 id. 302; Potts v. Clarke, Spencer (N. J.), 536; Tinsman v. Railroad Co., 1 Dutch. (N. J.) 255; Brown principle applies to all injuries to lands or water-rights in the possession of lessees. § 377. Same Same. Where the tenant in possession brings suit for the disturbance of his present enjoyment, possession alone is sufficient evidence of his title prima facie, and will support a recovery against a wrong-doer.1 So a cestui que trust in possession may maintain the appropriate legal actions against a wrong-doer for injuries to his possession.2 In Sumner v. Tileston,3 where the owner of the freehold brought suit for flowage, it was held that the possession of a tenant at will was that of the owner of the freehold, and that the latter could recover for present injury. The lessee of water-rights may maintain an action against a stranger for any interference there with to the injury of the lessee. § 378. Same-Reversioner.- The reversioner may sue for any wrongful interference with the future enjoyment of the property. This includes all acts directly injuring his freehold, and all adverse uses tending to establish easements or to abridge his rights. He may also sue for any acts interfering with his title. In the Prior of Southwark's Case, as cited by Wray, C. J., in Aldred's Case," the landlord was allowed to v. Bowen, 30 N. Y. 519; Woodbury v. Wills 50 Maine, 403; Davis v. Jewett, 13 N. H. 881, Baker v. Sanderson, 3 Pick. 348; Sumner v. Tileston, 7 id. 195; Ashley v. Ashley, 4 Gray, 197. The following leading cases further illustrate the rule, but do not affect waters; Baxter v. Taylor, 4 B. & Ad. 72, Hopwood v. Schofield, 2 Moo. & Rob. 34; Alston v. Scales, 9 Bing. 3; Johnstone v. Hall, 2 K. & J. 414; Mumford v. Oxford Ry. Co., 1 H. & N. 34; Kidgill v. Moor, 9 C. B. 364; Simpson v. Savage, 1 C. B. N. S. 347; Metropolitan Building Ass'n v. Petch, 5 C. B. N. s. 504; Bell v. Mid. land Ry. Co., 10 C. B. N. s. 287. 1 Bassett v. Salisbury Manuf. Co., 28 N. H. 438; Branch v. Doane, 17 Conn. 401; s. c. 18 Conn. 233; Brown v. Bowen, 30 N. Y. 519; Lincoln v. Chadbourne, 56 Maine, 197; King v. Tarlton, 2 H. & McHen. 473; Ferguson v. Witsell, 5 Rich. (S. C.) 280; Kimbrall v. Walker, 7 id. 422; Patrick v. Ruffners, 2 Rob. (Va.) 209; Morris v. McCainey, 9 Ga. 160; Ran v. Minnesota Valley R. Co., 13 Minn. 442; Norris v. Glenn, 1 Idaho, N. s. 590. In Dyson v. Collick, 5 B. & Ald. 600, a contractor for building a canal, having by permission of the owner of land built a dam for the purpose of aiding navigation, was held to have sufficient possession to enable him to maintain trespass against a wrong-doer. 21 Chitty, Pl. 69. 37 Pick. 198 (Putnam, J., dissented). And see, to same effect, Cushing v. Adams, 18 Pick. 110. 4 Year Book, 13 Hen. 7, 26. recover for an injury to land in the possession of a tenant by corrupting water with the refuse of a lime-pit. In Bedingfield v. Onslow, flowage was held an injury to the reversion. The overhanging of eaves or walls has been held not such an injury per se; and in another case, jury by Lord Denman, with the case of injury to the reversion. sulting from the non-repair of a conduit or gutter leading to the defendant's mill, has been held an injury to a reversioner;1 but a general allegation of an injury to the reversion by an obstruction of navigation has been held insufficient." 8 this question was left to the suggestion that it was a fair The washing away of soil, re $379. Same-Same.-In America it has been held that the freehold is injured by causing water to flow back upon the plaintiff's land, or into his race," or by the obstruction of his mill by backwater; or again by withholding the water from his mill; or by diverting a natural watercourse from his land; 10 or by polluting the stream," and that the reversioner may recover for such injuries. The owner of land leased at will for purposes of pasturage may maintain an action for the obstruction of a right to drain the land through an ancient watercourse, but must show and can only recover for the injury to the reversion.12 § 380. Same-Same.- Anything which will create a permanent disturbance of the enjoyment of property if not altered 13 Lev. 209. To same effect see which produced no present injury Bell v. Twentyman, 1 Q. B. 766. beyond that to the reversionary right, and which may be removed before the reversioner would come into possession. See also Bell v. Midland Ry. Co., 10 C. B. N. s. 287. 2 Jackson v. Pesked, 1 M. & S. 234. 3 Tucker v. Newman, 11 A. & E. 40. In another case, where the reversioner brought suit for the same injury, it was held that he could recover only such damages as the jury should think sufficient to compel the defendant to abate the nuisance, and not the damage to the salable value of the premises. Battishill v. Reed, 18 C. B. 696. 4 Egremont v. Pulman, M. & M. 404. Dobson v. Blackmore, 9 Q. B. 991. In Shadwell v. Hutchinson, 4 C. & P. 333; s. c. M. & M. 350 (affecting ancient light), case was held maintainable by a reversioner for a nuisance 6 Davis v. Jewett, 13 N. H. 88; Ashley v. Ashley, Gray, 197; Potts v. Clarke, Spencer (N. J.), 536. 7 Ripka v. Sergeant, 7 Watts & S. 9. 8 Baker v. Sanderson, 3 Pick. 348; Sumner v. Tileston, 7 id. 198; Brown v. Brown, 30 N. Y. 519. 9 Woodbury v. Willis, 50 Maine, 403. 10 Hart v. Evans, 8 Penn. St. 14. See Rogers v. Dickson, 10 C. P. (Can.) 481. 11 Seely v. Alden, 61 Penn. St. 302. 12 Hastings . Livermore, 7 Gray, 194; s. c. 15 Gray, 10. |