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. So trespasses in the construction of a dam or boom are not within the scope of the statutory remedy, and are actionable wrongs.4 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. 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. similar provision in Minnesota, Gen. Sts. 1878, c. 31, § 23, p. 331. See a 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. Perry v. Wilson, 7 Mass. 393; Henley v. Wilson, 77 N. C. 216. The was at common law and not under the statute. Finney. Somerville, 80 Penn. St. 59. 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.1 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.2 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 4 § 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 v. 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 . Coffey, 4 J. J. Marsh. 41. 3 Hardy v. 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 2'. 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 v. Johnson, 5 Porter, 208. Contra, see Wright . Pugh, 16 Ind. 106; and Ind. Rev. Sts. 1881, § 883, pl. 9. 5 Stowell v. 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 4 Va. Code, 1873, Title 19, c. 63, § 11; Miss. Rev. Code, 1880, § 932; 2 Mo. R. S. 1879, § 6435; Iowa Rev. Sts. 1882, § 1201. See Ind. Rev. Sts. 1831, c. 1, § 8; Ind. Rev. Sts. 1881, § 1859. In Wisconsin, it is held that judgment may be given in the alternative, upon proper allegations and proofs, for the payment of compensation and establishment of the right to maintain the dam; or, on non-payment, for the abatement of the dam. Cobb v. Smith, 38 Wis. 21. In an action to abate for non-payment of compensation, it is not necessary to join the mill-owner's grantees of the use of the water; but such grantees may be made defendants at their request, 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. 5 Ala. Code, 1876, § 3564; Ark. Rev. Sts. 1874, § 4225; Fla., McClellan's Dig. c. 152, § 6; Ill. Rev. Sts. 1881, c. 92, § 1; Ind. Rev. Sts. 1881, § 887; Ky. Rev. Sts. 1879, c. 77, § 4; Miss. Code, 1880, § 928; N. C. St. 1873, c. 72, § 9; Va. Code, 1873, Title 19, c. 63, § health, afterwards causes injury to health, the remedy is at common law. So where the statutes contain no such provisions, they are usually construed to provide remedies for injuries by flowage and the withholding of water only; and the common-law remedies are sustained for injuries to health caused by dams maintained under the Acts.2 The saving clause in the Virginia statute, and those which follow it, extend to damages which though contemplated by the statute as grounds for recovery in the special proceeding, were not included in the finding of damages. It is held that in a second action, the jury in the original proceedings will be presumed, in the absence of proof, to have foreseen and estimated all the damages which it was then practicable to foresee and estimate, and the statute does not save a right of action for damages foreseen but miscalculated.4 § 588. The right to compensation for incidental injuries caused by works of public utility is elsewhere considered.5 With respect to remedies where the right to compensation for incidental injuries is admitted, but is not provided for as a taking, the remedy is usually held to be by an action on 1 Commonwealth v. Favis, 5 Rand. 691; Miller v. Trueheart, 4 Leigh, 569. See Waddy v. Johnson, 5 Ired. 333, in which it is held that, where a person's lands are flowed, the statute intended to allow all incidental injuries caused by such flowage, e.g., injuries to health to be included in the finding; but that where a person's lands are not flowed, the remedy is by common-law action. And see Bridges v. Purcell, 1 Ired. 232, establishing the first part of the rule. 2 Rooker v. Perkins, 14 Wis. 79; Eames v. New England Worsted Co., 11 Met. 570. In Palmer Co. v. Ferrill, 17 Pick. 58, 66, Shaw, C. J., says: "The rule, therefore, which seems to be derived from the statutes construed together, seems to be to estimate the pecuniary loss arising to the the case.1 Where certain Acts authorized the defendant to enter upon a river-bed and alter it for the purpose of improving its channel, and provided a special remedy for injuries caused in carrying the Acts into effect, it was held that this remedy did not extend to injuries caused by the defendant in floating timber over the plaintiff's dam, and that the action on the case would lie.2 1 In Wabash v. Erie Canal Co., 16 Ind. 441, it was held that the flowing of lands by a canal company by statutory authority was not a taking within the statutory provision, and that an action at law could be maintained for such flowage. In Snowden v. Wilas, 19 Ind. 10, the same question is raised as a new question, but not decided. The action on the case will lie for such injuries. Locks & Canals v. Nashua Railroad Co., 10 Cush. 385, 388; Estabrooks v. Peterborough Railroad Co., 12 Cush. 224; Trenton Water Power Co. v. Raff, 7 Vroom, 335; Hooker v. New Haven Co., 14 Conn. 146; s. c. explained, 15 Conn. 312; Burroughs e. Housatonic Railroad Co., 15 Conn. 124, 132. See Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321; Pumpelly v. Green Bay Co., 13 Wall. 166; Nevins. Peoria, 41 Ill. 502, 510. An injunction may also be had against such injuries, unless compensation is made. Pettigrew v. Evansville, 25 Wis. 223. That any such injury constitutes a taking, see Eaton . Boston Railroad Co., 51 N. H. 504; and see Cooley Const. Lim. (5th ed.), 570. But see Bellinger . New York Central Railroad Co., 23 N. Y. 42; Monongahela Navigation Co. ". Coons, 6 Watts & S. 101; West Branch & Susquehanna Canal Co. . Mulliner, 68 Penn. St. 357; Selden . Delaware Canal Co., 29 N. Y. 634; Losce v. Buchanan, 51 N. Y. 476; Moyer v. New York Central Railroad Co., 88 N. Y. 351; Illinois Central Railroad Co. v. Bethel, 11 Brad. (Ill.) 17. 2 Coe v. Hall, 41 Vt. 325. The case of Denslow v. New Haven & Northampton Co., 16 Conn. 98, must, it seems, be referred to the principle of injuries unprovided for, if supported at all. There the defendants erected a dam under the authority of their charter, and with the approval of the commissioners appointed under it. The dam caused injury to a mill-site above belonging to A. The commissioners were never called on to assess damages on this account. A. afterwards sold his millsite to B. It was held that the commissioners could not take cognizance of subsequent injuries arising from time to time, and that B. could maintain an action on the case for the injuries. The court held that "where no steps are taken to present the case before them in the proper manner, the parties are left in the same situation as if no such authority was given, and, of course, that the defendants must be responsible as at common law." This is too broad. A mere failure by the injured party to bring his injuries before the commissioners, in the method provided, would not entitle him to an action at law. Such a rule would abrogate the doctrine of res adjudicata, and would in effect give the plaintiff an election of remedies. The case approves the rule in Crittenden v. Wilson, 5 Cowen, 165, which gives such an election, and must be considered so far wrong. |