by means of a mill-dam, obtained a judgment on a verdict of a sheriff's jury, that assessed his annual damages, and afterwards he filed a complaint against the mill-owner, alleging that the dam and the water had been raised higher than was allowed by the former verdict, and praying for a new assessment of his annual, and also gross, damages, upon which a sheriff's jury were impannelled, who decided that the dam had not been raised higher than was allowed by the former verdict, but they assessed annual damages to a greater sum than was assessed by the former verdict, and also assessed gross damages; this verdict could not be sustained, because the complainant had not alleged that he was dissatisfied with the annual compensation established by the first jury.1 § 520. By the Revised Statutes, the question whether a complainant has sustained damage from the flowing of his land by a mill-dam, cannot be tried by a jury at the bar of the Court, but is open to the sheriff's jury who view the land.2 § 521. Where it is adjudged that the respondent has no right to flow the land without the payment of damages, and that he pay a certain sum as the yearly damage, he is thereby estopped to plead, in bar to a complaint for an increase of such sum, a right by prescription, or by a grant previous to the judgment, to flow the land without payment of damages. And so is he likewise estopped to plead in bar, that no damage is done to the land; for that question must be determined by the jury.3 1 Leonard v. Schenck, 3 Met. (Mass.) R. 357; Stevens v. Fitch, 2 Met. (Mass.) R. 508. 2 Charles v. Porter, 10 Met. (Mass.) R. 37; Van Deusen v. Comstock, 8 Mass. R. 187. 3 Adams v. Pearson, 7 Pick. (Mass.) R. 341. § 522. All matters which may be pleaded in bar of a complaint for flowing land, are conclusively settled against the respondent, by a verdict found in favor of the complainant, on an issue tried at the bar of the Court; and the respondent cannot give any of those matters in evidence to a sheriff's jury, impanelled to appraise the damage sustained by the complainant.1 If the complainant obtains judgment on a verdict of the sheriff's jury, he is entitled to the costs of former trials in which the verdicts returned for him are set aside for irregularity.2 § 523. The verdict of the jury who make an appraisement of the yearly damages done to the land, under the Stat. 1795, returned, allowed, and recorded, is to be the measure of the yearly damages, until one party or the other shall, by a like process, obtain an increase or diminution thereof. It has the effect of a composition by deed; and an action of debt may be brought on the record; but no execution issues, and no scire facias lies for the future damages. The owner of the land may require security for the payment of such damages from time to time; if the mill-owner neglects or refuses to give such reasonable security as the Court shall offer, he is to have no benefit of the act. The composition thus established runs with the land, so that it binds not only parties to the record and privies, but their grantees.3 § 524. A certiorari, and not a writ of error, lies to the Court of Common Pleas for a revision of their proceedings by the Supreme Court; on which the latter 1 Charles v. Porter, 10 Met. (Mass.) R. 37. Court can only affirm the proceedings, if found to be irregular, or quash them, if the Court below has exceeded its jurisdiction, or proceeded in a manner not warranted by the statute, or other authority on which it acts.1 § 525. Where proceedings against a party, under the Revised Statutes, on a complaint for flowing, are not authorized by the provisions of c. 116, and judgment for damages is recovered against him, a writ of certiorari will be granted to remove the proceedings, for the purpose of quashing them, although he might have prevented such judgment by a proper defence to the complaint. A writ of certiorari was awarded where A, whose land was flowed by a dam erected by B, instituted a complaint, and recovered damages against B, and it was not alleged in the complaint, nor true in fact, that B had erected a mill, or had an intention forthwith to erect one, in connection with his dam.2 12. Of the Complaint under the Statute of Maine, and the Proceedings following it.3 § 526. Under the laws of Maine-authorizing the flowing of land by mill-owners not belonging to them - where the owner of land flowed by a mill-dam sells the mills and dam, and retains the land, the right to flow the land, to the extent to which it was then flowed, without payment of damages, passes by the grant. But where the owner sells the land flowed, and retains 1 Ibid; Palmer Co. v. Ferrill, 17 Pick. (Mass.) R. 58. 2 Barnard v. Fitch, 7 Met. (Mass.) R. 605. 3 See the Rev. Stat. in App'x, p. ix. the mills and dam, without reserving the right to flow, he is not protected from the payment of damages. It is no defence that the ownership of the land flowed ceased, before instituting the complaint.2 § 527. One who is neither the owner or the occupant of a water-mill, for the use of which the water has been raised or continued, nor the owner or occupier of the mill-dam, is not liable to the owner of the land flowed, although he may be benefited by the flow of the water. Thus, if a blacksmith's shop, in which the bellows is worked by a water-fall, can be considered a mill, yet if there is only a right to use the water for that purpose at the will of the owner or occupant of the dam, and at such times and under such restrictions as he may please to prescribe, the owner of such shop is not liable to the payment of damages for the flowing of the water.3 § 528. Where the proprietor of land overflowed by a dam owned by different persons, proceeded by separate complaints, and recovered judgment for yearly damages against each owner of the dam for flowing different portions of the complainant's land; and where, afterwards, one of the respondents becomes sole owner of the dam; if the proprietor of the land seek an increase of his yearly damages, he may combine the whole subject-matter in one complaint against the then owner of the whole dam.4 § 528 a. All the owners of mill-dams complained of should be joined in a complaint under the provisions 1 Preble v. Reed, 5 Shep. (Me.) R. 169; and see Hathorne v. Stinson, 1 Fairf. (Me.) R. 224. 2 Bean v. Hinman, 3 Red. (Me:) R. 480. 3 Nelson v. Butterfield, 8 Shep. (Me.) R. 220. 4 Jones v. Pierce, 4 Shep. (Me.) R. 411. of the Maine Rev. St. c. 126; and if they be not all joined, the complaint will be dismissed, if the nonjoinder be pleaded in abatement.1 § 529. The owner of the dam at the time when the yearly damage by flowing becomes due, is liable to pay it for the whole of that year; and the mortgagee in possession, for this purpose, must be regarded as owner.2 § 530. In proceedings under the statute, the respondent must plead any matter showing sufficient cause why further proceedings should not be had against him, though such plea be not among those enumerated; and if such matter pleaded be in its nature preliminary to the appraisement of damage by the commissioners, it will be tried at the bar of the Court, previously to the issuing of the warrant. In such case, if the plea involves matter triable by jury, with other matter cognizable only by the commissioners, the finding as to the latter part will be rejected as surplusage.3 § 531. In a complaint by the owner of the land, under the statute of Maine, to recover damages occasioned by its being flowed by a mill-dam, the question whether the plaintiff has suffered any damages, is to be determined only when the amount of damages is under consideration.* § 532. One J. T. and other individuals named only as such, gave a bond to one R. G., submitting to arbitrators "his claim for damages occasioned to his land 1 Hill v. Baker, 15 Shep. R. 9. 2 Lowell v. Shaw, 3 Shep. (Me.) R. 242. |