poses, and providing remedies for injuries caused thereby, have generally been construed to exclude the common-law remedies.1 1 Lebanon v. Olcott, 1 N. H. 339; Steele v. Western Navigation Co., 2 Johns. 283; Stevens v. Middlesex Canal, 12 Mass. 466; Sudbury Meadows v. Middlesex Canal, 23 Pick. 36; Elder . Bemis, 2 Met. 599; Tower v. Boston, 10 Cush. 235; Perry v. Worcester, 6 Gray, 546; Spring v. Russell, 7 Greenl. 273; Aldrich v. Cheshire Railroad Co., 21 N. H. 358; Troy v. Cheshire Railroad Co., 23 N. H. 83; Calking v. Baldwin, 4 Wend. 667; Spangler's Appeal, 64 Penn. St. 387; McKinney v. Monongahela Nav. Co., 14 Penn. St. 65; Fehr v. Schuylkill Navigation Co., 69 Penn. St. 161; Fuller v. Edings, 11 Rich. S. C. 239; Kimble v. Whitewater Canal Co., 1 Ind. 285; Conwell v. Hagerstown Canal Co., 2 Ind. 588; Null v. Whitewater Canal Co., 4 Ind. 431, 435. See Cooley on Torts, 652; Barker v. King's Norton Sanitary, L. J. 17 Notes of Cas. 16. Contra, are Fryeburg Canal Co. v. Frye, 5 Maine, 38; Crittenden v. Wilson, 5 Cowen, 165; Selden v. Delaware Canal Co., 24 Barb. 362. In the first of these cases, it was held that the common-law remedy might be resorted to against one who diverted a watercourse by statutory authority, although a remedy was provided, on the ground that there were no words of negation in the Act. In Crittenden v. Wilson, 5 Cowen, 165, a private Act was held merely to relieve the millowner from the liability to indictment, and to authorize a summary mode of appraising damages, and not to take away the remedy by action at law, upon the same ground as the preceding case, and relying on Comyn. Dig. Action Upon Statute (C.). ["If a statute gives a remedy in the affirmative (without a negative expressed or implied) for a matter which was actionable by the common law, the party may sue at the common law, as well as upon the statute; for this does not take away the common law."] This case is distinguished by Marcy, J., in Calking . Baldwin, 4 Wend. 667, thus: "If this be a private Act, as contradistinguished from a public Act, the law which was applied to the case of Crittenden v. Wilson must govern. The plaintiffs are not in such a case confined to the remedy given by the Act, but may proceed by action according to the common law. But if the work authorized by the Act be of a public character, the case is altered, and the compensation which individuals are entitled to receive for injuries occasioned by it, must be sought in the way pointed out by the Act, and not otherwise." Crittenden v. Wilson was cited with approval in Susquehanna Turnpike Co. v. People, 15 Wend. 268; Waterford & Whitehall Turnpike v. People, 9 Barb. 173; and Clark . Syracuse, 13 Barb. 32. See, also, Robinson v. New York Railroad Co., 27 Barb. 512. Selden v. Delaware Canal Co., 24 Barb. 362, follows 5 Cowen, 165, and holds that where land and buildings are injured by flooding, or by the percolation of water caused by the enlargement of a canal under statutory authority, the action at common law will lie. Upon appeal, the decision was affirmed on other grounds (29 N. Y. 634), but Selden, J., said: "It was insisted by the defendants' counsel that, admitting the lands to have been appropriated by the defendants, without the plaintiff's consent, the only remedy allowed to the plaintiff to obtain indemnity was that pointed out by the defendants' charter (Laws of 1823, p. 309), and that the present action, for that reason, could not be maintained. Calking . Baldwin, (4 Wend. 667), which does not appear to have been noticed when this case was § 583. But it is equally clear upon principle, and equally established by authority, that for injuries not authorized and included in the provisions of such statutes, the common-law remedies remain in full force. A frequent example of their use is afforded by injuries by a mill-dam to a mill already existing. Such injuries are usually expressly excluded from the operation and protection of the Acts, and are remediable at common law and in equity;2 and in the absence of such provisions the statute is so construed by the courts. What shall be protected as an existing mill has been considered in many cases, and with some difference of opinion. In Massachusetts it is held that the mill must be actually completed before the injury takes place. Where the plaintiff began to erect a mill, and the defendant, beginning later, finished his dam first, and injured the plaintiff's uncompleted mill, it was held that the plaintiff could not maintain a common-law action for the injury to his mill as an existing mill, but must pursue his remedy under the Mill Act. So the common-law first before the general term of the Supreme Court, if the principle upon which it rests is sound, would go far to sustain that position. It does not become necessary, however, to pass upon that question, as upon other grounds which have been mentioned, the judgment must be affirmed." The decision upon this point below ought, it seems, to be considered no longer law. Crittenden . Wilson is cited with apparent approval in Denslow v. New Haven Co., 16 Conn. 98. 1 For statutory provisions protecting existing mills, see Mass. Pub. Sts. (1882), c. 190, § 2; Maine Rev. Sts. 1871, title 9, c. 92, § 2; N. H. Rev. Sts. 1878, c. 141, § 19; Vt. Rev. Sts. 1880, § 3224; Rev. Sts. Conn. 1875, p. 473, S$ 1, 3; Wis. Rev. Sts. 1878, c. 146, § 3375; Va. Rev. Code, 1873, Title 19, c. 63, § 8; N. C. Rev. Sts. 1873, c. 72, § 8, pl. 3; Ala. Rev. Code 1876, § 3564, pl. 4; Ill. Rev. Sts. 1881, c. 92, § 2; Ind. Rev. Sts. 1881, §§ 898, 900; Ky. Gen. Sts. 1879, c. 77, §§ 6, 8; Mich. Laws, 1873, Act No. 196, § 12; Tenn. Sts. 1871, § 1920; Mo. Rev. Sts. 1879, c. 132, § 6437. That permission will not be granted to build a mill which will injure one already existing, see Larsh v. Test, 48 Ind. 130. 2 Bigelow v. Newell, 10 Pick. 348; Smith v. Agawam Canal Co., 2 Allen, 355, 357; Burnham v. Story, 3 Allen, 378; Brigham v. Wheeler, 12 Allen, 89; Williams v. Elting Woollen Co., 33 Conn. 353; Hendricks v. Johnson, 6 Porter, 472; Thomas . Hill, 31 Maine, 252; Wentworth v. Poor, 38 Maine, 243; Stickney v. Munroe, 44 Maine, 195; Lincoln r. Chadbourne, 56 Maine, 197; Lee v. Pembroke Iron Co., 57 Maine, 481; Moore . Coburn, 1 Pin. (Wis.) 538; Large v. Orvis, 20 Wis. 696; Hill . Ward, 2 Gilman, 285; Close v. Samm, 27 Iowa, 503. remedies for injuries to existing mills are strictly confined to injuries to the mills and works. The plaintiff cannot include Hendricks v. Johnson, 5 Porter, 208. But see Elting Woollen Co. v. Williams, 36 Conn. 310, in which the court hold that where two persons are seeking to appropriate the same power, one as owner, and one under the flowage Act, the law will favor the owner; and that this will not be altered by the fact that the owner has recently purchased the power with knowledge at the time that the petitioner was negotiating for the right to flow it. The statute of Wisconsin (Rev. Sts. 1878, c. 146, § 3375) protects mills already existing or in "process of erection." Water-power held by the owner, near a mill actually in use, with the intention at some future time to use it for the mill, is protected by the act. Occum Co. v. Sprague Manuf. Co., 35 Conn. 496; Elting Woollen Co. v. Williams, 36 Conn. 310. But small mills which are not actually used as mills, but were erected merely to protect a right of flowage, are not entitled to the protection of the Act. Occum Co. v. Sprague Manuf. Co., 35 Conn. 496. A mill is held to be "lawfully existing," though its dam is maintained a little higher than it should be. Robertson v. Miller, 40 Conn. 40. No person can avail himself of the privileges conferred by the Mill Act of Massachusetts, nor bring himself within its protection merely by erecting a dam across a stream running through his land. There must be coupled with such erection the building of a mill for use, or the bona fide provable intent to erect one forthwith. Fitch e. Stevens, 4 Met. 426; Veazie . Dwinel, 50 Maine, 479, 485. A dam used to float timber to a steam saw-mill is not protected. Bryan v. Burnett, 2 Jones L. 305. Injury to a canal and waste weir connected with a water-mill has been held an injury to a mill within the Massachusetts statute. Dean v. Colt, 99 Mass. 480. In Bottomly v. Chism, 102 Mass. 463, a reservoir dam used with a mill was held entitled to protection as an existing mill, under the Massachusetts Act. The owner of property already appropriated for milling purposes cannot have an injunction to restrain proceedings which will authorize flowage injurious to him. If he can appear in such proceedings, his remedy there is complete; if not, the proceedings will be void as to him, and he can enjoin the flowage itself. Williams v. Elting Woollen Co., 36 Conn. 313. In Rhode Island it is held that where a person has erected a dam for mill purposes, no one is authorized to erect a mill-dam in such a way as to flow out the former dam, or destroy its fall of water, even though no mill has been built or begun thereon, unless the design for building a mill has been abandoned. If the proprietor of such dam should represent that he intended to abandon the dam for mill-purposes, he would be estopped to deny that such were his purposes, as against one who has been influenced by his representations, to build a dam below which injures the fall at the dam above. If the dam is built for other than millpurposes, it is not entitled to protection under the Act against flowage by a later dam, built for mill-purposes. The erection of a dam or mill-priviledge available for mill-purposes furnishes prima facie presumption that the dam is intended for such purposes, and the fact that it is slightly built, is not sufficient to rebut the presumption. Mowry . Sheldon, 2 R. I. 369. The right to an injunction to protect an existing mill or mill-site, may be lost by acquiescence in the building of another mill. Nosser v. Seeley, 10 Neb. 460. In Indiana, a in his action at law injuries to his meadows; nor will equity enjoin such an injury; for these he must proceed under the Act. 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 maintained 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 ma terials, and excavation of a foundation, is sufficient to entitle him to the protection of the statute. Miller v. 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 v. Kittredge, 17 Mass. 76; Winkley v. Salisbury Manuf. Co., 14 Gray, 443; Leonard v. Wading River Co., 113 Mass. 235; Brady r. Blackinton, 113 Mass. 338; Arimond v. Green Bay Co., 31 Wis. 316. See Hiscox v. 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.1 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 v. Clifford, 54 Maine, 487. 5 Commonwealth v. Stevens, 10 Pick. 247. To same effect under the Kansas statute, see Venard v. Cross, 8 Kansas, 248, where an injunction was granted. |