recover on this ground when injured by backwater.1 Where the materials of a bridge forming part of a discontinued highway were sold by a town to a riparian proprietor, he was held liable to the land-owners above for damages caused by the setting back of the water in consequence of such materials remaining in the river, and was not permitted to set up in defence that he had removed greater obstructions from the river before the purchase. The plaintiff is always entitled to compensation in money, and it is not an answer to an action for illegal flowage that the mill and dam which caused it are beneficial to the plaintiff or to the public.3

§ 211. In an action for injury to the plaintiff's land by backwater, the measure of damages is the actual injury to the land by the overflow, or its fair rental value from the time when the injury commenced to the date of the writ.5 He may show, in aggravation of damages, that the fertility and future value of the overflowed land are impaired, and the prospective loss of growing crops or timber when reasonably certain to occur; the expense of draining off the water standing upon or percolating through the soil;8

have been committed on a particular day, evidence of similar torts previously committed is inadmissible. Noah . Angle, 63 Ind. 425. In such case, the opinion of a witness as to the amount of damages resulting from the tort is inadmissible, and the jury must make the estimate from the facts proved. Ibid.

1 Treat v. Bates, 27 Mich. 390; Bassett v. Salisbury Manuf. Co., 43 N. H. 569; Johnson v. Roan, 3 Jones (N. C.) 523; Bowman v. New Orleans, 27 La. Ann. 501.

2 Talbot v. Whipple, 7 Gray, 122. 3 Engard v. Frazier, 7 Ind. 294; Gerrish v. New Market Manuf. Co., 30 N. H. 478; Tillotson v. Smith, 32 N. H. 90; Webb v. Portland Manuf. Co., 3 Sumner, 402; Marcy v. Fries, 18 Kansas, 353; McKellip v. McIlhenny, 4 Watts, 317.

4 Phinizy v. Augusta, 47 Ga. 260. 5 Baldwin v. Calkins, 10 Wend. 167; Chicago v. Huenerbein, 85 Ill. 594.

6 Hutchinson v. Granger, 13 Vt. 386; Powell v. Lash, 64 N. C. 456; Marsh v. Trullinger, 6 Oregon, 356; Pixley v. Clark, 35 N. Y. 579; Schieble v. Law, 65 Ind. 332; Rooker v. Perkins, 14 Wis. 79; Bevier v. Dillingham, 18 Wis. 529; Brower v. Merrill, 3 Chand. (Wis.) 46; Clark v. Nevada Land Co., 6 Nev. 203; Standish v. Washburn, 21 Pick. 237; Lincoln v. Copper Manuf. Co., 9 Allen, 181, 190; Spilman v. Roanoke Navigation Co., 74 N. C. 675.

7 Folsom v. Apple River Log Driving Co., 41 Wis. 602; Hayden v. Albee, 20 Minn. 159.

8 Ibid.; Clark v. Nevada Land Co., 6 Nev. 203; Chicago Railroad Co. v. Carey, 90 Ill. 514.

the injurious effect of the water upon a spring or well, whether caused by flowing or percolation;1 the destruction of a ford; or the decrease in the productiveness of the neighboring upland by the percolation of water from the millpond. In an action for overflowing land by a city reservoir, the law is the same as in the case of damages from a milldam.4

§ 211 a. Flowing meadow or pasture land and thereby destroying grass, which is a natural product of the soil and not an emblement, is waste at common law.5 If a dam causes the water of a stream to flow back upon the plaintiff's meadow, on which hay or other property is placed, he is bound to use reasonable care and diligence to protect his property, and cannot recover from another, who causes his land to be flowed, a greater amount than would have been necessary to protect his property, if reasonable diligence had been used. But he is entitled to recover, if not guilty of negligence, the full amount of the injury, although it might have been prevented by the expenditure of a smaller amount.8 The supposed value of crops which might be raised on the land if it had been cultivated, what the land might produce, or what a crop not planted would sell for when produced, are too uncertain and speculative elements to be included in the damages for deprivation of the use of land. But evidence is admissible showing how much the crop of one year,

308; Simpson v. Keokuk, 34 Iowa, 568; Hochl v. Muscatine, 57 Iowa, 444; Decorah Woolen Mill Co. v. Greer, 49 Iowa, 490.

1 Lehigh Valley Railroad Co. v. 7 Van Pelt v. Davenport, 42 Iowa, Trone, 28 Penn. St. 206; Commonwealth v. Fisher, 1 Penn. 462; Neal ". Henry, Meigs (Tenn.) 17; Payne v. Taylor, 3 A. K. Marsh. 328; Allen . McCorkle, 3 Head, 181; IIarding v. Funk, 8 Kansas, 315.

2 Monson v. Brimfield Manuf. Co., 15 Pick. 544.

3 Trimble v. Gilbert, 3 Blackf. 218. 4 Brown v. Atlanta, 66 Ga. 71.

5 Potts v. Clarke, Spencer (N. J.) 536, 543.

8 Reynolds v. Chandler River Co., 43 Maine, 513.

9

Chicago v. Huenerbein, 85 Ill. 594; Chicago v. Rock Island Railroad Co., 16 Ill. 522. Damages for flowing land cannot be pleaded in set-off, unless liquidated by agreement, and pleaded as on contract. Pitts v.

6 Chase v. New York Central Rail- Holmes, 10 Cush. 92. road Co., 24 Barb. 273.

made after the commencement of the action, was less than those of former seasons.1

§ 211 b. If a mill above is obstructed by backwater, evidence may be submitted to the jury of the profits of manufacture at the mill as a means of determining the value of the waterpower, if the declaration alleges such loss of profits; but the measure of damages is not the loss caused by the stoppage of the mill, but the loss which could not be avoided by the use of other appliances.3 A mill-owner, who, having the right to use a reservoir and dam, is bound to maintain the dam, but does not own the land, is entitled to recover from a lower proprietor upon the stream, who sets the water back upon his dam, for the interference with his easement, including the diminished benefit of the reservoir, the increased expense of repairing the dam, or the obstruction of repairs. And a mortgagee who is in possession of a mill privilege which is rendered useless by the flowing back of the water, is entitled, as damages, to interest upon the value of the privilege, if unobstructed, from the time of his taking possession.5 A declaration in case, which alleges that the defendant unlawfully maintained a dam across a stream, whereby the water was set back upon the plaintiff's land, is sustained by proof that backwater was caused by the act of the defendant in keeping the gates or sluices in the dam shut at times when they should have been open. If the owner of land on both sides of a stream erects

1 Garrett v. Commissioners, 74 N. C. 388; Morris Canal Co. v. Ryerson, 27 N. J. L. 457.

2 Plimpton v. Gardiner, 64 Maine, 360; Simmons v. Brown, 5 R. I. 299; Sumner v. Tileston, 7 Pick. 198; Holden v. Lake Co., 53 N. H. 552; White v. Moseley, 8 Pick. 356; Taylor v. Dustin, 43 N. H. 493; Lawson r. Price, 45 Md. 123; Potter v. Froment, 47 Cal. 165; Jutte v. Hughes, 67 N. Y. 267; Ripley v. Great Northern Railway Co., L. R. 10 Ch. 435; Horton v. Hall (Pa.), Chicago Legal News, Feb.

a dam across it, and causes the water to flow back upon a mill-dam above, which is built partly on land belonging to its owner, and partly on land belonging to the lower proprietor, without his license, the latter is not liable for thus obstructing the wheels of the higher mill.1

§ 211 c. Backwater and other injuries resulting from an interference with the natural flow of the stream may arise from a combination of natural and artificial causes. In an action for flowing land by means of a dam, it is a question of fact for the jury whether the flowage was caused by the dam or by other obstructions; 2 and evidence is admissible which tends to show that it was produced by a natural cause.3 Where backwater was caused by the narrowness of the stream below a dam, and that circumstance preponderated largely in producing the injury to the plaintiff's land, it was held that there was no cause of action. But, in general, the fact that the defendant's dam is not the principal cause of the damage, if it clearly causes some part of the damage, would not defeat the action. A lower proprietor is bound to construct his dam so that it will not throw back the water, in times of ordinary freshets, upon the land of an upper proprietor, and cannot successfully defend upon the ground that his dam causes the flowage only when the stream is swollen.

Under this rule, freshets are regarded

1 Jewell v. Gardiner, 12 Mass. 311. v. Wausau Boom Co., 54 Wis. 107. A 2 Smith v. Russ, 17 Wis. 227; verdict for nominal damages will not Brown v. Bush, 45 Penn. St. 61; be set aside when the jury might Dickinson v. Boyle, 17 Pick. 78; Chi- infer from the evidence that the flowdester v. Consolidated People's Ditch age was occasioned in part by the deCo., 53 Cal. 56; Chicago Railway Co. fendant's acts, although the damage v. Hoag, 90 Ill. 339. mainly results from other causes.

3 Grigsby v. Clear Lake Water Co., Phillips v. Phillips, 34 N. J. L. 208;

40 Cal. 396.

4 Bucker v. Athens Manuf. Co.,

54 Ga. 84; Brown v. Atlanta, 66 Ga. 71; Monongahela Navigation Co. v. Coons, 6 Penn. St. 383. So, in case of extraordinary floods. China v. Southwick, 12 Maine, 238; Smith v. Agawam Canal Co., 2 Allen, 358; Sprague v. Worcester, 13 Gray, 193; Borchardt

Janssen v. Lammers, 29 Wis. 88.

5 Ibid.; Monmouth v. Gardiner, 35 Maine, 247.

6 Bristol Hydraulic Co. v. Boyer, 67 Ind. 236; Dorman v. Ames, 12 Minn. 451; Pixley v. Clark, 35 N. Y. 525; Cowles v. Kidder, 24 N. II. 381; Davis v. Fuller, 12 Vt. 178; Bell v. McClintock, 9 Watts, 119; Roush v.

as ordinary which are well known to occur in the stream occasionally through a period of years, although at no regular intervals.1 In proceedings under the mill acts, which authorize the flowage of others' lands, the jury, in estimating damages, may consider the effect of those ordinary periodical freshets which can be foreseen with reasonable certainty.2 In Massachusetts it is held that if a dam erected by the owner of lands upon both sides of an unnavigable stream does not ordinarily throw back the water so as to obstruct an ancient mill above, he is not liable if the broken ice formed upon his pond in winter becomes so packed as to press back the water to an unusual extent. In New Hampshire it is held that the owner of the dam is liable in such a case, if there is no evidence of a sudden and accidental accumulation of ice by extraordinary means, not liable to occur each winter, or of any unusual state of the water.1 In Proctor v. Jennings,5 in Nevada, where a dam erected on a stream below the plaintiff's mill was not injurious when built, but afterwards extraordinary quantities of sediment, arising from a new process of mining used on the stream above, in connection with the dam, caused the water to flow back and intefere with the mill, the owner of the dam was held not to be responsible for such unforseen and fortuitous circumstances. So a boom company, incorporated by the legislature of Maine, which erected and maintained its boom without fault or negligence, was held not liable for the

Allen, 355. See Shrewsbury v. Brown, 25 Vt. 197. In general, if a natural cause contributes to an injury which could not happen without fault on the part of the defendant, he is liable. Dickinson v. Boyle, 17 Pick. 78; Salisbury v. Herchenroder, 106 Mass. 458.

Walters, 10 Watts, 86; Lehigh Bridge 3 Smith v. Agawam Canal Co., 2 Co. v. Lehigh Navigation Co., 4 Rawle, 9; Wallace v. Headley, 23 Penn. St. 106; Casebeer v. Mowry, 55 Penn. St. 419; McCoy v. Danley, 20 Penn. St. 85; Burbank v. Ditch Co., 13 Nev. 431; Cobb v. Smith, 38 Wis. 21; Borchardt v. Wausau Boom Co., 54 Wis. 107; Ames v. Cannon Manuf. Co., 27 Minn. 245; Pugh v. Wheeler, 2 Dev. & Bat. 50; Rex v. Trafford, 1 B. & Ad. 874; 8 Bing. 204.

1 Gray v. Harris, 107 Mass. 492; Dorman v. Ames, 12 Minn. 451.

2 Sabine v. Johnson, 35 Wis. 185, 203.

4 Cowles v. Kidder, 24 N. H. 364; Hooksett r. Amoskeag Manuf. Co., 44 N. H. 105. See Bell v. McClintock, 9 Watts, 119.

5 6 Nev. 83.