within the principles fully recognized by this court in the case of Palmer v. Mulligan. (3 Caines, 313.) Though there was a difference of opinion on the bench, as to the result of the motion in that case, yet this difference did not, in any measure, turn on the question presented by this case. Spencer, J. said, the act of erecting a dam by the Defendant was a lawful act ; and though, in its consequences, slightly injurious to the Plaintiffs, they were remediless it was damnum absque injuria. The erection of dams on all rivers is injurious, in some degree, to those who have mills on the same streams below, in withholding the water; yet this had never been supposed to afford a ground of action. Livingston, J. said, each one had an equal right to build his mill, and the enjoyment of it ought not to be restrained, because of some trifling inconvenience to the other; and he utterly rejected the doctrine, that the person erecting the first mill thereby acquired any superior rights. Were the law, he observes, to regard little inconveniences of this nature, he who could first build a dam or mill on any public river would ac· quire an exclusive right, at least for some distance; for a second dam could not be built, unless at a considerable distance, without producing some mischief or detriment to the owner of the first. Here the principle on which the Plaintiff rests is directly met, and treated as leading to extravagant consequences, altogether inadmissible. Although I differed from the opinion of the court in that case, it was upon the ground that the Plaintiff had acquired a superior right by a prior enjoyment of the water, in a particular manner, for forty years, which was sufficient to raise the presumption of a grant; and the chief justice who also dissented from the majority of the court, rejected the doctrine set up by the Plaintiff in this case. Many cases, said he, may be supposed, which would be damnum absque injuria: such as the insensible evaporation and decrease of the water by dams, or the occasional increase or decrease of the velocity of the current, and the quantum of water below. Many such circumstances may be inevitable from the establishment of one dam above another upon the same stream. I have been thus particular in noticing the several opinions in this case, because, if the principles which seem there to be taken for granted by the whole court, are well founded, they are in direct hostility to the Plaintiff's right of action. There is no ground, in point of fact, if that could make any difference in the principle, for alleging that there was no natural mill seat or fall, where the Defendants' works are erected. There is enough for every purpose for which the Defendants have, and had, a right to use the water. The court are, accordingly, of opinion, that the Defendants are entitled to judgment. Judgment for the Defendants. 10 JOHNSON'S REP. 241. SACKRIDER AND ANOTHER v. BEERS AND ANOTHER. IN Error, on certiorari, from a justice's court. B. & B. sued S. & S. before the justice. The declaration was for diverting the watercourse of the Plaintiffs, by which the Plaintiffs were disturbed in the enjoyment of their grist-mill. The Defendants, S. & S., pleaded, not guilty. It was proved that the Defendants erected their saw-mill and dam, in 1806, across the Delaware river, about fifty rods above the mill-dam of the Plaintiffs, which had been built and used for above 18 years before. The Defendants took the water out of the river at their dam into a raceway on the north-westerly side of the river, and which emptied again into the river, about 40 rods below the dam of the Plaintiffs. The Defendants owned the land on the westerly side of the river, and the Plaintiffs' mill is on the south-easterly side; and they also take the water through a race-way which is returned again into the river below the mouth of the race-way of the Defendants. The jury found a verdict for the Plaintiffs, on which the justice gave judgment. Foot, for the Plaintiffs in error. D. Ruggles, contra. Per Curiam. There is no just objection to the recovery of the Plaintiffs below. The Defendants were answerable in damages for the injury to the Plaintiffs in the enjoyment of their mill, by diverting the natural course of the water. The Defendants had, no doubt, a right to build a mill on their land; but they must so construct the dam, and so use the water, as not to injure their neighbours below, in the enjoyment of the same water according to its natural course. (3 Caines' Rep. 320.) The judgment must be affirmed. Judgment affirmed. CRO. CAR. 575. SANDS . TREFUSES. ACTION on the case, for stopping a water-course running to his mill; and declares, that he was seised in fee of a mill, and had a watercourse running in the Defendant's land to the said mill, and that the Defendant had stopped his watercourse. The Defendant pleads a vitious plea; whereupon the Plaintiff demurred. And now, Beare, for the Defendant, moved in arrest of judgment, that the declaration was ill, because he doth not declare that his mill was an ancient mill, and that the watercourse was an ancient watercourse, nor doth he prescribe to have a watercourse in the Defendant's land. But all the Court held it to be well enough, and may well maintain his action upon the case, being lawfully in possession, and the stopping of the water is tortious, and a damage to his mill; and although he doth not shew que estate, that is not material; and it hath been divers times so ruled, viz. 33 Eliz. in Sly v. Mordant, but because this was moved the last day of the Term, day was further given until the next Term. BARNEWALL AND ALDERSON'S REP. 258. SAUNDERS v. NEWMAN. THE declaration stated, that Plaintiff was possessed of a water-mill, with the appurtenances, &c., in which mill he had used, exercised, and carried on, and still of right ought to use, exercise, and carry on the trade and business of a miller; and that the Defendant was possessed of another mill and mill-pond, and that the water of a certain stream from time immemorial had flowed, and still of right ought to flow in its usual channel unto the mill of the Plaintiff, and from thence unto the mill and mill-pond of Defendant, and from the mill and mill-pond of Defendant in its usual channel, without being penned or forced back so as to occasion any injury to the Plaintiff's mill; yet the Defendant, well knowing the premises, wrongfully kept and continued a hatch-dam or mill-head of and belonging to his mill-pond, raised to a much greater height than the same had theretofore been, whereby large quantities of water of the stream which ought to have flowed and escaped from and out of the Defendant's mill and mill-pond in its usual channel below the same mill, and away from the mill of Plaintiff, was greatly prevented from flowing and escaping from the mill and millpond of Defendant, as the same otherwise would have done, and by reason of such obstruction quantities of the water and stream were penned and forced back against the wheel of the Plaintiff's mill, whereby Plaintiff was prevented from working his mill, to his damage, &c. Plea, general issue. At the trial before Mr. J. Burrough at the last assizes for the county of Wilts, it appeared in evidence that the Plaintiff's mill was built on the site of an old mill which had existed in that spot for a space of at least forty years. In 1801 this old mill was burnt down, and the Plaintiff then built the present mill, with a wheel of the same dimensions and on the same level with the former one. Since that period, however, he had erected a new wheel of different dimensions, but requiring less water. The level of the water however continued the same. It was for an injury to this last wheel that the action was brought. Upon these facts the learned Judge was of opinion, "that as this was an action founded on the Plaintiff's possession, and for an injury to that possession, and as he had not enjoyed his mill in the state in which it was when the injury was sustained for the space of twenty years, he was not entitled to recover: that if the mill had remained in the state in which it was when rebuilt in 1801, he would have been entitled to maintain his action for an injury, but he thought fit to alter it, and to make a new wheel so materially different from the former, that the evidence of his right was gone; and this being his own voluntary act, the learned judge thought that he could not maintain the action on the ground of possession, for he could only support it by a medium of proof, not that this was the same wheel, but that if the old wheel had remained, the acts of the Defendant would have injured him in that state." Lord ELLENBOrough C. J. The Plaintiff in this case has declared that he was possessed of a mill, and that the water has been used to flow in a particular manner. Now if by any alteration lower down the stream, the water be prevented from escaping, as it has usually done, and that be to the prejudice of the owner of the mill, it seems to me to form the ground of an action against the party so obstructing the water. If indeed the Plaintiff had stated in his declaration his right to be in respect of a mill of a given construction, the result might have been different; but in the present case there must be a new trial. BAYLEY J. I do not see how the alteration of the wheel can make any difference in this case; at least so far as to withdraw it from the consideration of the jury. It seems to me that all the allegations in the declaration were proved: the Plaintiff proved that he was possessed of a mill, and that the water had flowed from time immemorial in a particular channel, and that |