#### Rooker vs. Perkins and another.

In an action under the mill dam law (R. S., 1858, chap. 56), the plaintiff may recover compensation for all injuries to his land, whether caused directly by overflowing it, or indirectly by rendering it less productive and useful, hut not for damages in consequence of noxious and offensive vapors which affect the health of the plaintiff or of his family but do not affect the land itself.

After twenty years’ peaceable and uninterrupted adverse enjoyment of an easement, a grant will be presumed.

*80APPEAL from tbe Circuit Court for *Racine*County.

This was an. action under tbe mill dam law, commenced September, 1859. Tbe complaint, after stating in tbe -usual form tbat about eight acres of tbe plaintiff’s farm bad been overflowed and injured in consequence of tbe erection of tbe defendants’ dam, alleged tbat tbe ebbing and flowing of tbe water upon said eight acres bad caused tbe atmosphere in tbe neighborhood to become impure, by means of which he and bis family, who resided on the farm, bad, from time to time, become sick, and be bad been obliged to expend a large sum of money in bis and their cure. Tbe complaint stated also tbat tbe dam was raised to an unreasonable height. On tbe trial, tbe plaintiff offered evidence to sustain bis allegations in regard to tbe corruption of tbe air and tbe consequent sickness of his family, but tbe court excluded it. One issue between tbe parties was, whether tbe dam bad been erected and maintained for twenty years next before tbe commencement of tbe suit, at tbe same height at which it was when the action was commenced. Upon this point, tbe court gave the jury this instruction: “ If for twenty years next before tbe commencement of .this suit tbe defendants have raised tbe water at their mills tbe same uniform height tbat it now is, or was at tbe commencement of this suit, and tbe water has during all tbat time been kept up and maintained uninterruptedly at a height equal to or greater than at tbe time of commencing this suit (except mere accidental interruptions), tbe .plaintiff cannot recover, for tbe reason tbat an acquiescence'on bis part in such a use of the water constitutes a complete bar to a recovery for flowing bis land.” This instruction, and tbe exclusion of tbe evidence above mentioned, presented the only questions considered in this court, and the other instructions given are omitted. Verdict and judgment for tbe defendants.

*Judd*& Joy, for appellant,

as to tbe nature of tbe injuries for which compensation should be allowed in an action of this kind, cited E. S., chap. 56, secs. 4, 13; *Robbins vs. Mil.*& *Sor. R. R. Co.,*6 Vis., 636, 643; *M. &R. Man. Co. vs.*Fuller, 15 Pick., 554 ; *The Palmer Co. vs.*Ferrill, 17 id., 58, 63, 67; and argued tbat tbe 16th section of the mill *81dam law should receive a construction, favorable to the life and health of the injured party (8 Wis., 461) ; that the dence excluded was admissible also as tending to show that the dam was raised to an unreasonable height; and that the court erred in its charge as to the effect of twenty years user. *Stiles vs. Hooker,*7 Cow., 266; *Tinlcham vs. Arnold,*8 G-reenL, 120.

*Boyce & Cole*(with whom were *Lyon & Adams),*for respondents,

argued that tho plaintiff’s remedy for a corruption of the air, causing sickness, was by an action to abate the dam as a public or private nuisance *(Lames vs. N. H. Worsted Co.,*11 Met., 570; *Palmer Co. vs. Ferrill,*17 Pick., 58-66); and that the charge as to the effect of twenty years user was correct. Angelí on Watercourses, §§ 200-210; *Williams vs. Nelson,*23 Pick., 141; *JBealey vs. Shaw,*6 East, 208; *Picard vs. Williams,*7 Wheat., 59; *Hill vs. Crosby,*2 Pick., 466; 13 N. H., 360 ; 3 Watts, 308; 2 Munf., 534; 8 Shep., 220; 9 Wis., 166, and cases cited; 4 Wash. C. C. R., 601; 3 Kent’s Comm., 442 ; R. S., chap. 138, sec. 2.

June 18.

*By the Court,*

DIXON, C. J.

We see no error for which the judgment in this case should be reversed. The appellant’s offer to show that the water in the dam infects the atmosphere in the neighborhood of his residence with noxious vapors and produces sickness in his family, for the purpose of proving that the dam is raised too high, was properly rejected. It is obviously the policy and object of the statute, to give the owner whose land has Actually been overflowed or otherwise directly injured by the raising of the water, compensation for such injuries to the land. The fourth section declares that “ any person whose land is overflowed or otherwise injured by such dam, may obtain compensation therefor, upon his complaint before the circuit court for the county where the land or any part thereof lies.” This section undoubtedly provides -a remedy for all injuries to the land itself, whether directly, by overflowing it, or indirectly, by rendering it less productive and useful to the owner. But it goes no further. It clearly does not include damages sustained by the corruption of the air, which has *82n0 connec^on with and does n°f a£fect the fertility and pro-duetiveness of tbe soil. It is to the “ person whose land is overflowed or otherwise injured ” that the remedy is given. case supposed by Chief Justice Shaw, in *Eames vs. New England Worsted Company,*11 Metcalf, 570, which was an action brought under a similar statute, sufficiently exposes the fallacy of the position of the appellant’s counsel on this question. In addition to the damage done to the complainant’s land by the action of the water, either by flowing over it and destroying the grass and other producid- or by being absorbed into and percolating through it under the surface, so as to render it less productive, the complainant: offered evidence to prove that the flowed land, when the' water was drawn off, emitted noxious and offensive smells,; and thus occasioned damage to the lands of the complainant other than those flowed or rendered unproductive, but contiguous thereto. The court held that this evidence could not be received, and the Chief Justice, in argument, says: “ One mode of testing this is to suppose a case where the meadows and the adjacent upland affected by offensive smells, instead of belonging to the same proprietor, are held by different owners. Close No. 1 belongs to A, and No. 2 to B. The former is meadow, and flowed; the latter is upland, so elevated and so distant that it is not reached, directly or indirectly, by water, but in consequence of its vicinity to the flowed land, it is affected by offensive smells and is thereby rendered less desirable for building lots. It appears to us clear that B could have no remedy under the mill act. And we think that the result cannot be different where both parcels of land belong to the same proprietor ?” It is very evident that evidence of such damages cannot be received for any purpose in an action under the statute. If the erection and continuance of the dam be a private nuisance, the remedy is by action at the common law and not under the statute.

That á grant will be presumed, by analogy to the statute of limitations, after twenty years peaceable and interrupted adverse enjoyment, is too well settled to admit of controversy. The instructions were, in this respect, correct. And *83as tbe jury must bave found under them, either that the appellant’s land was not flowed or injured by means of dam, or that the dam had been maintained at the same height for the period of twenty years next before the commence-**/O*ment of the action, the consideration of the other exceptions becomes unnecessary. The appellant, having no cause of action, could not have been injured by any rule of damages, however erroneous it may have been.

Judgment affirmed.