That was an action against pavement, as to obstruct the The commissioners did not the case of Leader v. Moxon. commissioners for so raising the Plaintiff's doors and windows. exceed their jurisdiction, and were exercising powers given them by an act of parliament; but the Court thought they were acting in a most tyrannical and oppressive manner, and that though they had a right to pave, and perhaps to raise the street, they had acted so arbitrarily, that they were answerable. With that judgment this Court entirely agrees. If commissioners, acting within their jurisdiction, act wantonly and oppressively, they are responsible to any individual for the injury they do him. There the injury might have been avoided by doing the act in a different way; here the commissioners, at the time of doing the act, took every precaution to prevent injury to the surrounding land. The other case is that of The Governors and Company of the British Cast Plate Manufacturers v. Meredith. Commissioners were directed to pave, repair, raise, sink, or alter, and render secure a very abrupt and dangerous place in the road, and they had, in so doing, raised the ground opposite to the gateway of the Plaintiff's, so that they could not enter the gateway. The commissioners were directed by the act to make this a gradual descent; and the case reserved stated, that it could only be done by making it a regular inclined plane from the top to the bottom, which they had done. The act, therefore, which prescribed what should be done, in effect prescribed the manner of doing it, because there was no other manner that, therefore, does not come up to the Defendant's case here the act prescribes what shall be done, but not the manner of doing it. This case therefore is to be determined on principle alone, and upon principle, we are of opinion that the Defendant is not answerable in this action. This case is perfectly unlike that of an individual, who, for his own benefit, makes an improvement on his own land according to his best skill and diligence, and not foreseeing it will produce any injury to his neighbour: if he thereby unwittingly injure his neighbour, he is answerable. The resemblance fails in the most important point of comparison, that his act is not done for a public purpose, but for private emolument. Here the Defendant is not a volunteer: he executes a duty imposed on him by the legislature, which he is bound to execute. He exercises his best skill, diligence, and caution in the execution of it, and we are of opinion that he is not liable for an injury which he did not only not foresee, but could not foresee. He has done all that was incumbent on him, having used his best skill and diligence. Another point was made on the limitation of the time; but having disposed of the case in favour of the Defendant, and decided that there must be a nonsuit upon the second point, it is unnecessary for us to decide on the other. Rule absolute. (a) (a) See Adams's New Hamp. Rep. 339. Lebanon v. Olcott. 2 Johns. 283. Steele v. Western 1. L. N. Company. 4 JOHNSON'S REP. 81. THOMPSON v. EB. GREGORY. THIS was an action on the case, for erecting a dam across a stream of water running through the land of the Plaintiff, situate in the manor of Rensselaer, and so near the land of the Plaintiff, that it was thereby overflowed. At the trial of the cause, the following facts appeared. The Plaintiff was in possession of land, through which the stream ran, which was admitted to be an ancient stream, and in 1802, the Defendant erected a back-mill and dam, below the possession of the Plaintiff. The Plaintiff's land, every season, was overflowed by the stream, at high water, before the dam was built; and the dam erected by the Defendant, prevented the water from running off the Plaintiff's land, as soon as formerly, and thereby destroyed its use as meadow. About nine acres of the Plaintiff's land were thus overflowed. The Defendant gave in evidence a lease, dated 7th January, 1797, from the proprietor of the manor to one Joshua Griggs, which included the premises of the Plaintiff, and also those of the Defendant, where the back-mill and dam were erected. The lease contained about 86 acres, 40 acres of which were, on the 21st March, 1806, assigned by Griggs to one Stephen Gregory, and they included the land whereon the mill and dam were erected. The Defendant held his premises by a parol agreement under Stephen Gregory. The lease to Griggs, contained the following exception, " excepting, and reserving out of the grant, unto the grantor, his heirs and assigns, all mines, &c. and all streams and runs of water upon the premises, with the soil under the same, and the right and privilege of erecting upon any part of the premises, mills and dams, &c. for the use of the grantor, &c. and also, such part of the said land, as may, by the said dams, be overflowed with water, &c. and also free ingress, &c. for the purposes of, &c. the grantor, his heirs and assigns, making a due abatement in rent for the lands which he shall so use and occupy." The Defendant contended that the lands of the Plaintiff, thus overflowed, were included in the exception, and did not pass by the grant, and that the Plaintiff could not bring the action; but the objection was over-ruled: the Defendant then offered to prove by Stephen Gregory, that the Defendant erected the mill and dam, by permission of the original grantor, and the witness, on being examined as to his interest, said, that the fee of the land on which the mill and dam were erected, was still in him, but that the Defendant entered under a parol contract with him for the purchase of the land, and built the mill and dam thereon. The witness, being objected to as interested, was rejected; but the Plaintiff offered to admit any permission in writing from the grantor. The witness then offered a release of his right to the premises, in the possession of the Defendant under the parol contract, and on which the mill and dam stood, and which release the Defendant was ready to accept. The witness was still rejected, as incompetent, and the jury found a verdict for the Plaintiff, for 31 dollars 8 cents damages. A motion was made to set aside the verdict, and a case containing the above facts, was submitted to the court without argument. Per Curiam. This case is submitted, without argument, and the counsel for the Defendant has stated several points, as reasons for setting aside the verdict, and awarding a new trial. 1. It is contended, that the Plaintiff had no interest in the lands overflowed by the mill dam, as they were embraced by the exception or reservation, contained in the original lease to Griggs. The lease excepts and reserves all streams, and the soil under them, with the right to erect mills, and mill dams, and it then excepts and reserves the land which may be overflowed, in consequence of such dams. But until the grantor has exercised his right to erect mills, and mill-dams, it cannot be ascertained what lands will be overflowed, and the reservation is, in the mean time, inoperative, and, considered strictly as an exception in the deed, it is void for uncertainty. It must be construed in relation to the subject matter, and it is like the right to erect mills, and to have ingress to them, the reservation only of a right to use the lands se conveyed, for such a specific purpose. The direct interest in the soil, in the mean time, passed by the deed; and the Plaintiff can well maintain the present action, so far as respects his interest in the premises. 2. The next, and the principal point in the case, relates to the matter set up as a defence, and to the competency of the witness, who was offered to prove it. The defence was, that the mill and mill dam were erected by permission of Stephen Van Rensselaer, the original grantor, and Stephen Gregory was offered as a witness to prove this permission. He was objected to, and rejected; but the Plaintiff, at the same time, offered to admit in evidence any permission in writing from the grantor. It is not necessary to examine whether the witness was, or was not competent, because assuming him to have been so, his testimony would have been of no avail, since the right in question could not pass by parol. The right reserved by the lease to the grantor, and his heirs and assigns, to erect mills, or mill dams, was an incorporeal hereditament. It was not the land itself, but a right annexed to it, and it could only pass by grant. The appropriate subject matter of grants, is these incorporeal rights, of which livery cannot be had, and a grant is, in general, good only by deed. This was the rule of the common law, and were it otherwise, no such interest could be assigned or granted, without writing, according to the express provision of the statute of frauds. The court are of opinion, therefore, that the motion on the part of the Defendant be denied. Rule refused. 4 MASS. REP. 522. TOWN OF STOUGHTON, &c. v. BAKER AND VOSE. : PARSONS, C. J. The Plaintiffs found their claim on the resolution of the legislature recited in the declaration on the alteration of the former sluice way ordered by the committee therein appointed: on the refusal of the Defendants to make that alteration seasonably on the authority given by Mr. Loud as a sub-committee to the Plaintiffs to make that alteration: and on the Plaintiffs' making it pursuant to that authority. The Defendants object to the claim of reimbursement of the money paid to defray the expences of the committee; and we are satisfied this objection is well founded. The resolve is silent on this subject, and the only charge which it imposes on the owners of the dam is three fourths of the expenses incurred in altering the sluice-way. The Defendants also object to the claim for the expenses of making the alterations in the sluiceway, arguing that the legislature had no authority to pass the said resolve. Because their dam is an ancient dam derived from a grant by the town of Dorchester in 1633, held by them and by those whose estate they have therein, without any sluiceway for the passage |