cending into the said dwellinghouse, the same was and hath been greatly annoyed, and rendered noisome; and the said E F, on that account, and for no other cause, within the time aforesaid, to wit, from &c. to &c., would not continue to hold the said dwellinghouse, as tenant thereof, without a great abatement of the rent thereof, and on &c., surrendered up the said dwellinghouse to the plaintiff, and would not continue tenant thereof any longer; and the said dwellinghouse, by means thereof, continued without any tenant for a long time, to wit, for the space of two years then next following; &c.

NOTE. In the above case, if the tenant had not obtained an abatement of the rent, he might have maintained this action for the nuisance during his tenancy, and the landlord would have had no right of action to recover damages during that time; but on account of the abatement of the rent, and the eventual loss of the tenant, this action might be maintained by the landlord for the nuisance during the tenancy; but the tenant could maintain no such action after the abatement of the rent. See 3 Wils. 461; 3 Pick. 348. But where the injury is to the reversion, as well as the possession, the action may well be maintained by the landlord, for the injury to his estate, as well as by the tenant for the injury done to his possession. See 1 M. & S. 239, 334; 3 Lev: 209.

If a nuisance is erected during the life of a testator, the devisce may have an action, if it is continued afterwards. 2 Cro. 231.

For digging a bank whereby plaintiff's house and wall adjoining fell down.

For that whereas the said P P, on &c., was seized of and in a dwellinghouse, with the appurtenances, in &c., whereof a house, called a garden-house, otherwise, the house on the wall and a garden, then were parcel, in his demesne as of fee; and being so thereof seized, the said A A, B B, C C, and D D, well knowing the premises, but maliciously contriving and intending to hinder and deprive the said P P of the profit and advantage of the said house, called the garden-house, &c., and unjustly to aggrieve the said P P, on the said day of &c., did dig stones in a certain piece of ground, called &c., in aforesaid, so that the said house and three hundred perches of a stone wall, inclosing the said garden, afterwards, to wit, on &c., entirely tumbled and fell down upon the ground, in the said piece of land, so dug, &c. 2 Saund. 397.

NOTE. This declaration was adjudged good on a writ of error brought to reverse the judgment. Smith et al. v. Martin, 2 Saund. 394. (MSS.) It is said, if a man dig a pit in his land, so near that my land falls into the pit, this action may be maintained. But if a man build a house, and make cellars upon his soil, whereby a house newly built in an ad

joining soil falls down, no action can be maintained. See 1 Sid. 167; 2 Rol. 565, 1. 10. See the case of Thurston, in 12 Mass. R. 220.

For erecting a dam above plaintiff's dam, &c.

day of &c., has

For that the plaintiff, ever since the been seized in his demesne, as of fee, and has been in actual possession of an ancient grist-mill, or water-mill to grind corn, situate on a rivulet or stream in &c., called &c., together with an ancient dam, to raise a head of water so high as should be necessary for said mill, and of having the whole water of said stream, without obstruction or impediment, flow into said pond, for the benefit of said mill, as ancient rights and privileges appurtenant to said mill; yet the said D hath since, to wit, on &c., unjustly erected a new dam across the said stream, above the plaintiff's dam aforesaid, within the limits of the plaintiff's pond and ground, that he had a right to flow, and thereby cut off part of his said pond, ponded the water above, and stopped the natural course of the water with which it anciently used to run into the plaintiff's pond; and still continues his new erected dam and obstruction aforesaid, thereby frequently stopping the water from coming to the plaintiff's said mill, and obliging the same to stand still for want of water, and at other times, letting out the water through said new dam, so suddenly, and in such large quantities, as to waste and tear away a great part of the plaintiff's said dam; whereby the plaintiff's mill aforesaid, of the yearly value of &c., is rendered useless; all which is to the damage, &c. T. PARSONS.

NOTE. In declarations for turning a water course, it is good to state it as an ancient watercourse, which has been accustomed to run to the plaintiff's mill, without setting forth any prescription; for these words are tantamount. Cro. Car. 499.

In declarations for disturbing water courses, if the defendant is the owner of the soil through which the water passes, it will be necessary for the plaintiff to show not only a possession, but also a title to the easement. But, against a mere wrongdoer, it will be sufficient for the plaintiff to allege a possession. See Vernon v. Goodrich, 1 Str. 5.

For erecting a mill and diverting a watercourse.

For that whereas the plaintiffs, on &c., and ever since have been, and still are, seized in their demesne, as of fee, of two corn mills in &c., with their appurtenances, and the plaintiffs and those whose estate they have in said mills, have time out of mind, had the free course of the water at Ipswich river, to and from the said mills, for the use thereof, and the sole privilege of serving the inhabitants of Ipswich

aforesaid, in grinding their corn for the customed and lawful toll, while they may be duly served by the said mills, till the plaintiffs were disturbed and hindered therein, by the said D; and the plaintiffs ought accordingly to hold said mills with the privileges aforesaid, freely and undisturbed; yet the said D, in no wise ignorant of the premises, but maliciously contriving to disturb the plaintiffs in the enjoyment of their said mills, with the privileges and appurtenances thereof aforesaid, and deprive them of the profits thereof, on or about &c., erected a certain corn-mill in Ipswich aforesaid, on Ipswich river aforesaid, at the Falls a little below the plaintiffs' mills aforesaid, with a dam to the same, and have continued, and improved the same ever since, and still do so; whereby they are continually drawing a great deal of the plaintiffs' water, and grind much of the corn of the said inhabitants of Ipswich, while they might be duly served by the plaintiffs' mills aforesaid, and cause a backwater that hinders a free course of the stream of Ipswich river aforesaid, from the plaintiffs' said mills, to the great nuisance of the plaintiffs' mills aforesaid, the destruction of the privileges thereof aforesaid, and to the damage &c.

NOTE. By ch. 116, of the Revised Statutes of Massachusetts, no action at common law, can be maintained for the erecting, maintaining, or using any mill or mill-dam, except as allowed in that chapter, &c. 30. The mode of proceeding on a complaint for overflowing land by the erection of a mill-dam, is there pointed out in detail.

For erecting a dam and obstructing a water course belonging to an ancient mill.

For that the plaintiffs (husband and wife,) were, on &c., and unto this day, are seized in right of said E, in their demesne as of fee, of a certain close of about four acres of land, and of a certain water-mill thereon standing, with the appurtenances, all situate in said S. And the plaintiffs, and all whose estate, they, in right of said E, have in said close and mill, from time whereof the memory of man runneth. not to the contrary, have had, until obstructed by said D, the free course and use of a stream of water, running &c.; and the plaintiffs still ought to have and hold the same, free and undisturbed; whereof the said D was well knowing, and contriving to deprive the plaintiffs of their profits of their said mill and close, there, on &c., did erect a dam across said stream, in the aforesaid close of said D, and threw a great number of stones into said stream, on the easterly side

day of

of said mill, and the same continued until the &c., and thereby raised the stream twelve inches above its usual and due height, and caused a back water, hindering the free course of said stream from the said mill, to the great nuisance thereof; and thereby obstructed and prevented the plaintiffs in the use of their said mill, and deprived them of the profits thereof, for divers days and times between said &c., all which are &c. W. PYNCHON.

For diverting a watercourse from an ancient mill.

For that the plaintiffs, on &c. last past, were, and ever since have been, and now are, seized of a certain water-mill, called a corn or grist-mill, with the appurtenances, situate in M aforesaid, commonly called and known by the name of Swan's mill, in their own demesne, as of fee; and that the plaintiffs, and all those whose estate they now have in the said mill, with the appurtenances, had, and from the time whereof the memory of man runneth not to the contrary, were used to have, and now ought to have, a certain watercourse, called and known by the name of Spicket river, running to their said mill; and being so seized, the said D,. not being ignorant of the premises, but intending to injure the plaintiffs and deprive them of the use and profit of their said mill, did at M aforesaid, on &c. aforesaid, and on divers times and days between that time and the day of &c., dig up and remove the banks of said watercourse, and divert a great part of the water thereof, so running as aforesaid from their said mill, so that the said mill, which before was able and was used to grind fifty bushels of corn in every twenty-four hours, now, and during the time aforesaid, by reason of the diversion aforesaid of the said water, is, and was able to grind only four bushels of corn in every fourand-twenty hours; by reason of which, the plaintiffs, for all that time, have lost and have been deprived of the profits of their said mill, and still continue deprived thereof; to the damage &c. T. PARSONS.

For overflowing plaintiff's meadow.

For that the plaintiff, on &c., and long before, and ever since, was and is seized of his demesne, as of fee, and actually possessed of a certain parcel of meadow land, containing by estimation acres with the appurtenances, situate in &c. bounded &c.; and whereas the water from

the said brook,* from the time whereof the memory of man runneth not to the contrary, in its natural channel, was wont to run; yet the said D, not ignorant of the premises, but maliciously int nding to deprive the plaintiff of the use and profit of his said acres of meadow land, on &c., and continually afterwards, by the space of one year then next following, the ancient course of the water of said brook at &c. aforesaid, with a certain sluice in the easterly side of said brook, on &c. erected by him, the said D, did obstruct; by reason of which obstruction, the water of said brook, overwhelming the banks thereof towards the said acres of meadow land, wholly overflowed the same, and thereby spoiled, carried away, and destroyed hundred weight of the plaintiff's hay, on the said meadow land, then and there lying, and being of the value of -; whereby the plaintiff lost said hay, and was deprived of the profit of said acres of land, for a length of time, to wit, from &c. to &c.; all which &c. 1 Wils. Rep. 174.

For overflowing plaintiff's meadow by erecting a dam. For that the plaintiff, ever since the day of &c., has been lawfully seized and possessed of a tract of meadowland, in &c., containing &c., bounded &c.; of all which, the said D was well knowing; but the said D, minding and contriving to injure the plaintiff, and deprive him of the benefit of his meadow land, hath ever since the said

day of &c., maintained and kept up, and continued a milldam in &c. aforesaid, across a brook, there commonly called Stony brook; and by means thereof, caused the water of the brook aforesaid, to overflow and drown the plaintiff's meadow land aforesaid, ever since the said-day of &c.; whereby the plaintiff's grass, growing in his meadow aforesaid, within the time aforesaid, and of the value of $—, has been made worse, damnified and destroyed; and his meadow land aforesaid, is become spongy, rotten and impassable; and the plaintiff has also, during the time aforesaid, thereby been prevented clearing his said meadows. TROWBRIDGE.

The same and special damage.

For that whereas the plaintiff, on &c., at &c., was and ever since hath been, seized in fee of three acres of meadowland, situate &c., lying on each side of the brook, common

* Mentioned in the boundaries.