#### WARRING *v.*MARTIN, ET AL.

Nuisance — character of the stream — injury to the possession and to the freehold — depositions taken when counsel are absent — manner of certifying the oath of a witness.

In an action for a nuisance for damming up water in a river, it is competent to prove the general character of the river to choke up and gorge, before and since the erection of the dam. Where there is evidence tending to prove a possession, the court will not judge of its effect and order a non suit.

It is no objection to reading a deposition, that it was taken at a time when the counsel was out of the county attending court.

A deposition cannot be read unless the certifying magistrate who took it certify that the witness was sworn to testify the truth, the whole truth, &c. according to the statute.

The owner of land through which a stream of water flows, has a right to use the water, so that he does no substantial injury to another proprietor.

If a nuisance be erected which injures a mill underlease', or in possession of one not the owner of the fee, the person in possession may recover for the injury to his possession, and the holder of the fee for the injury to the freehold.

The measure of damage is the injury sustained from the erection of the nuisance until the commencement of the suit.

Nuisance, for injury to a mill and dam possessed by the plaintiff, in damming up water. Plea not guilty.

After the evidence was closed for the plaintiff,

*P.*Hitchcock, for the defendant,

moved for a non suit, because the evidence did not prove the plaintiff in possession.

Giddings, contra.

Giddings,

objected to the question.

Giddings,

objected to.

1. Because at the time it was taken counsel were out of the county at court.

2. Because the magistrate taking the deposition has not certified that the witness was sworn to testify the *whole truth.*

By the Court.

There is some evidence tending to prove a possession in the plaintiff. It is not for us to determine its effect. The motion is overruled.

In the defence a witness was asked the general character of the river to gorge and choke up at the breaking up of *the*ice and in freshes.

By the Court. The general habit or character of the river to dam up at the place of the injury, before and since the erection of the dam, may be very material, in enabling the jury to determine whether the injury complained of resulted from the defendant’s dam, or would have been probably the same in that stage of water without it. The question may be asked.

The defendant offered to read a deposition, which

By the Court. There is nothing in the first exception. The second is well taken. The law 29 *O. L.*126, expressly requires it *381to be certified that the witness was sworn ‘ to testify the truth, the whole truth, and nothing but the truth.’

*B. T. Wade*and *Giddings,*for the plaintiff to jury.

*E. Wade*and *P.*Hitchcock, contra.

Wright, J.

to the jury. The plaintiff claims to be possessed of a piece of land, house and. mill, through which Grand river flows, and that the defendants built a dam below on the 1st June, 1831, and flooded the water back to his injury, and kept it up till the suit brought in May 1832. No injury was complained of till February. The defendants deny that the injury was occasioned by their dam.

Every owner of land over which a watercourse flows, has a right to use the water, but he must use it without inflicting any substantial injury to another, or he is liable.

The plaintiff, to entitle himself to your verdict, must satisfy you by evidence — 1. That *his possession was injured.*It is urged that the evidence shows the pre-possession in Bishop, to whom the mill was leased. If that is established, it defeats the plaintiff’s right in this action. — 2. That the injury to the plaintiff resulted from the defendants’ dam. The plaintiff has undertaken to prove this to your satisfaction, and if he has failed to do so altogether, or has failed to satisfy you of the truth of this allegation, your verdict will be for the defendants. But if the plaintiff was possessed of the mill, &c. and the defendants’ dam has flowed back the water, you will inquire if the dam has been productive of actual injury to the plaintiff, between its erection in January, 1831, and the bringing of this suit on the 9th of May, 1832; and you will remark, that it is an injury to the *use*of the mill, during that period, for which if the plaintiff has established a right to recover, you should assess the damage. The injury to the freehold is an injury to the owner of it, for which he, and not the occupant, can recover damages.

Yerdict for defendant and judgment.