of the same obstruction. If this became lawful by the provisions of the statute, subject only to the remedies there prescribed for the party injured, the statute would be by this construction a bar to any action at common law, where land is overflowed by the raising of a mill-dam. But the remedy, now sought to be prosecuted, is pursuant to the provisions of the statute.

The award by referees, in the process first instituted with a view to pursue the statute remedy, is altogether retrospective ; a determination as to the amount of damages, which had been then sustained by the complainant. It is not an assessment of yearly damages, which shall be afterwards sustained: and therefore has necessarily left open to the owner of the land damaged by overflowing, any further occasional remedy for subsequent damages, to be demanded by an action at common law, or if that is superseded by the statute, then by a complaint to the common pleas, as this process is.

The only question that needs discussion, after the explanation which has been gone into, arises upon the verdict allowed and recorded in the second process, instituted according to the provisions of the statute. Such a verdict is made a sufficient bar to any action to be brought for any such damages: and this seems to be reasonable, whether the verdict is for or against the complainant, as it respects the subject matter of the complaint, what is at the time the subject of proof, and evidence, that is, respecting any supposed damages, alleged to have been then sustained. But in the nature of the thing, as to subsequent damages, which may be afterwards actually sustained, and of which plenary evidence may be produced, the verdict of the jury, that there is no damage, and therefore no cause of complaint,is not and cannot be a bar. Such a verdict must be considered as determining the state of the issue between the parties at that time. The assessment, of an annual allowance for damages, is a consequence only of the finding by the jury of actual damages, which had been sustained at the time of their enquiry. When that is not found, or where they find that there is no damage, the assessment of annual damages prospectively would be foreign to their inquiry.

The legislature have, impliedly at least, determined this to be the constructive effect of a verdict, where no damages are found or assessed. (a) As already observed, any verdict, returned, allowed and recorded, is a bar to an action at law: but a new complaint is suspended or prevented, only where the verdict and judgment thereon, so recorded, is capable of being the measure of the yearly damages. A verdict that there is no damage, at the time of the inquiry by the jury, certainly is not a measure of yearly damages.

It might be suggested indeed, if this case would be aided by it, that the provisions of the subsequent statute, for a tender of damages on the part of the mill owner, and to prevent any complaint for an increase of damages, until one month expires after the same shall have become due, may be equitably extended, and rendered applicable to a case, where the mill owner has been acquitted of damages in a former process. And I see no reasonable objection to that construction: but the effect of it would be a suspension only of the complaint, for one year and one month following the time comprised in the prior decision. And perhaps the intent of the provision would be fully answered, by permitting the mill owner to bring into court the amount of damages which he consents to allow, under a rule which should entitle him to the same advantages and costs, as he might have had by a tender of such damages, made previous to the complaint.

This case, however, is not at all within that provision, giving it the most liberal construction it is capable of. Nor do we perceive any effect, which these pleas can have, as a bar to a process under the statute, by virtue of any of the provisions contained in the first, or in the subsequent additional statutes, enacted for the support and regulation of mills.

The pleas of the respondents are adjudged bad and insufficient: and this judgment is to be duly certified to the court of common pleas, with the complaint and proceedings, so far as these have been removed by the appeal, to be there further proceeded in as the law requires.

(a) Stat. 1797. c. 63.

12 MASS. REP. 466.

STEVENS v. THE PROPRIETORS OF THE MID

DLESEX CANAL.

PARKER C. J. delivered the opinion of the court.-The nonsuit in this case was ordered on the ground, that as a special process was provided in the act incorporating the proprietors of the canal, whereby those, who might receive damage in their lands by means of establishing the canal, should obtain compensation, the action at common law is no longer maintainable. This principle was settled in the case of Stowell v. Flagg. (a)

When the legislature authorizes an act, the necessary and natural consequence of which is damage to the property of another, he who does the act cannot be complained of as a trespasser or wrongdoer. In the declaration of rights prefixed to our constitution, it is provided that private property shall not be taken and appropriated to public uses, without compensation to the owner. So that if the legislature should, for public advantage and convenience, authorize any improvement, the execution of which would require or produce the destruction or diminution of private property, without affording at the same time means of relief and indemnification, the owner of the property destroyed or injured would undoubtedly have his action at common law, against those who should cause the injury, for his damages. For although it might be lawful to do what the legislature should authorize; yet to enforce the principles of the constitution, for the security of private property, it might be necessary to consider such a legislative act as inoperative as far as it trenched upon the rights of individuals.

But that difficulty does not exist here; the legislature having taken care to provide a cheap, easy and convenient mode of redress, for all who might suffer by the accomplishment of a

(a) 11 Mass. Rep. 364,

great public object. The act of the legislature is indeed obscure, confused, and almost unintelligible in its terms: but its general object may be understood; and the least doubtful of its provisions is that which establishes the course of proceedings to recover damages for lands flowed, or other injuries proceeding from the canal.

There is therefore no necessity of resorting to an action at common law. Indeed it must be considered as intended by the legislature to deny that remedy on account of the inconveniences and vexations it would bring upon the proprietors, who had engaged in an expensive experiment principally with a view to the public benefit.

The Plaintiff's motion to set aside the nonsuit is over-ruled.

YELVERTON'S REP. 162.

STONE AND AL. v. BROMWICH.

Cro. Jac. 231. Noy 135. S. C.

THE two Plaintiffs declared against the Defendant for diverting an ancient watercourse, which time whereof, &c. ante talem diem ran in et per their land, which they held in common, and shewed their several titles in their declaration, and that such a day after the Defendant diverted the water there running, &c. to their damage, &c. and upon non cul. pleaded it was found for the Plaintiffs, and moved in arrest of judgment; 1. That the Plaintiffs ought not to join in this action, because they are tenants in common, no more than in assise of nuisance: But non alloca tur, for the assise of nuisance is in the realty, but this action is only in the personalty, and does not concern the title but only the possession whereby the profits of the land are diminished; for concessum fuit, that in an action for slandering their title, or in forger of false deeds, they must sever, and cannot join, because it concerns the title, which is several, and so is 19

H. 6. (a) 2. Exception was, because the Plaintiffs shew that it was an ancient watercourse, which ran per et trans the Plaintiff's land till 1 Maii such a year, which was before the action laid, and before the stopping laid in the declaration, so that it does not appear that the watercourse had continuance at the time of the diversion; but because it appears afterwards in the declaration, that the Plaintiffs charge the Defendant with the diversion such a day after, which is now found by the verdict, the court cannot intend but that the watercourse continued. (b) Per totam curiam. And judgment accordingly.

(a) Tenants in common must in general sever in real actions; but in personal actions-as for trespass or nuisance to their land-they must join. 2 R. III. 16. Thel. Dig. 50. 5 D. & E. 249. Harrison v. Barnly. So they must join in detinue of charters: Co. Lit. 197. b. And in actions for the destruction of charters or title-deeds, 7 Mass. Rep. 135. Daniels & al. v. Daniels. But they cannot join in an action for forging false deeds, for they can receive no prejudice from false deeds, except in their several titles. Ibid. Jointenants and parceners must join in real as well as personal actions: Bracton 428. Thel. Dig. 39. 46. 47. Britton c. 49. And if one die, or being a feme sole, marry pending a real action, it will abate. Bracton 276. Thel. Dig. 313. 324. Gilb. H. C. P. 254. 10 Mass. Rep. 179. Oxnard & al. v. Proprietors of Kennebeck Purchase. In personal or mixed actions, the death of one joint tenant or parcener will not abate the suit. Rep. Temp. Hardw. 395. Middleton v. Croft.

In Massachusetts, by statute of 1783. c. 52. co-heirs may all join or any two of them, or they may sue separately, in actions of waste, ejectment or any other real action, where possession of the inheritance, alleged to have descended from a common ancestor, is the object of the suit. Since this statute, summons and severance will not lie for co-heirs. 10 Mass. Rep. ubi sup.

(b) An action for divertng a watercourse is local. 2 East 502. Company, &c. of Mersey and Irewell Navigation v. Douglas and al. But the gravamen need not be described with any local certainty: It is sufficient if it be laid at any place within the body of the county. Ibid.