#### William Sumner *versus*Edmund Tileston *et al.*

Where the plaintiff, owner of a mill, carried on business in it in company with another person, and agreed to make a deduction from the rent on account of backwater caused by the defendant’s dam, it was *held,*that in an action by the plaintiff against the defendant to recover damages for the obstruction, such other person was not interested, and therefore was a competent witness.

Where the'plaintiff, in an action of the case to recover damages for an obstruction to his mill, whereby his profits were diminished, declared that he was seised and possessed of the mill, and the evidence was that it was occupied by a tenant at will at a rent reduced on account of the obstruction, it was held that the declaration was supported, for that the possession of the tenant was the possession of the plaintiff, and the injury was consequential upon a wrong done while the plaintiff was in actual possession, and the damage was sustained by him alone. *Putnam J,*dissenting.

Where the defendant was owner of an existing mill-dam, and the plaintiff rightfully erected a mill-dam above it on the same stream, it was held that the defendant had no right to increase the height of his dam to a level with the plaintiff’s wheel, and thereby to obstruct the wheel by back-water.

Where the plaintiff erected a mill in 1799, and the defendant, who owned a mill lower down on the same stream, was in the habit of raising his dam by means of flash-boards when the water in the stream was low, but within twenty years aftei the erection of the plaintiff’s mill, had been frequently ordered to take down the flash-boards and always acquiesced, claiming no right to keep them up to the injury of the plaintiff, and afterwards admitted that he had no right to keep them up, it was held that this evidence was sufficient to defeat any claim of prescription on the part of the defendant, or to rebut the presumption of a grant.

This was an action on the case. The plaintiff declares, that from August 1,1813, he has been seised and possessed of an ancient mill and dam, in and across Neponset river, and that on that day the defendants wrongfully heightened a dam across the same stream below the plaintiff’s mill, and have ever since kept their dam higher than it ought to have been raised, whereby the wheels of the plaintiff’s mill have been retarded and obstructed, “ and the profits thereof diminished during, all the time aforesaid.”

The cause was tried before *Wilde*J. In regard to the injury set forth as to the plaintiff’s possessory right, in the diminution of the daily profits of his mill, it appeared, that for a part of the six years next before the date of the writ, he and his son William carried on business in the mill in company, and that he had agreed to deduct something from the rent on account of the back-water caused by the defendant’s dam ; and *204for the residue of that period, the mill was in the possession of two of his sons, and he had also agreed to deduct something from their rent for the same cause. The defendants contended that the evidence did not support the *declaration;*but the judge overruled the objection.

William Sumner, the son of the plaintiff, being offered as a witness, xvas objected to by the defendants as interested in the suit, but he was admitted to testify, it appearing that a recovery in this case would in no way affect his interest.

It appeared that the defendants, when the water was low, used flash-boards on their dam, and it was found that this use commenced the year after the plaintiff built his dam and mill, to wit, in 1799, and that the plaintiff owned the land on one side of the river only, xvhen he built his dam, though he had a legal right to place it where he did, and that the flash-boards would raise the water to a level with the bottom of the plaintiff’s wheel when the water in the river was low.

The defendants contended, that by law they had a right to raise their dam or flash-boards to a perfect level with the bottom of the plaintiff’s wheel. But the jury were instructed, that if the defendants had raised their dam or flash-boards within six years so as necessarily to cause back-water to the plaintiff’s mill, it would sustain the action.

The defendants attempted to show a prescriptive right to the use of flash-boards when the water was low ; but it appeared that the plaintiff had sent in 1815 and 1817, and at other times, to have them taken off, and they were taken off, and that the defendants, in 1823, applied to the plaintiff for liberty to put on their flash-boards, saying that they did not claim it as a right, but that they were willing to pay the plaintiff a reasonable compensation for the privilege.

The defendants contended that it should be put to the jury to consider, whether the notice xvas to take off the flash-boards because the water was higher in the river than when it was their custom to keep them on, or whether it was intended that they should put them on no more. But the jury were instructed, that if they believed the evidence showing that the plaintiff had frequently, within twenty years after the flash-boards were first put on, ordered the defendants to remove them, and that *205the defendants always acquiesced, never claiming the right to keep them up to the injury of the plaintiff, and that afterward they had admitted they had no right to keep them up, this evidence would be sufficient to defeat any right of prescription or to rebut any presumption of a grant.

*Oct. term,*1827.

*Richardson*and *Cushing,*for the defendants,

to show that the action was not supported, inasmuch as the declaration set forth an injury to the possessory right, and the evidence was of an injury to the reversion, cited *Leader*v. *Moxton,*3 Wils. 461 ; *Jesser*v. *Gifford,*4 Burr. 2141; *Bedingfield*v. *Onslow,*2 Lev. 209 ; *Jefferson*v. *Jefferson,*ibid. 130 ; *Panton*v. *Isham,*ibid. 360 ; 1 Chit. PI. 367 ; 2 Wms. Saund. 206, notes 21, 22, and 207 *a,*note 24 ; *Baker*v. *Sanderson,*3 Pick. 348 ; *Bertie*v. *Beaumont,*16 East, 33 ; *Vowles*v. *Miller,*3 Taunt. 137 ; *Martin*v. *Goble,*1 Campb. 320 ; *Fitzsimons*v. *Inglis,*5 Taunt. 534 ; *Stott*v. *Stott,*16 East, 343 ; *Starr v. Jackson,*11 Mass. R. 519, [Rand’s ed. 527, note a.]

The use of the flash-boards began soon after the erection of the plaintiff’s dam, and therefore each party must rest on his natural rights as against the other. Each has an equal right to a fair apportionment of the stream. A trifling damage by one to the other is *damnum absque injurió. Platt*v. *Root,*15 Johns. R. 217 ; *Palmer*v. *Mulligan,*3 Caines’s R. 307 ; *Merritt*v. *Brinkerhoff,*17 Johns. R. 321.

The plaintiff and his son William were partners, and might have joined in the action, and the damages recovered would be partnership funds, which each might use ; so that the son was interested, and therefore could not be a witness.

The question ought to have been submitted to the jury, whether the notice from the plaintiff to take off the flash-boards was a prohibition to use them generally, or merely information in regard to the time in which, according to usage, they ought not to be kept up. If the latter were the case, there was evfdence of a prescriptive right. Had there been a grant of a privilege to raise the water to a certain heighjt by flash-boards whenever the water should be low, the defendants would have proceeded in the manner they have done.

*Churchill,*for the plaintiff.

The opinion of a majority of the Court was drawn up by

*206*Oct. 30th,*1828.

Parker C. J.

William Sumner junior was not an interested witness. He could claim nothing of his father of the damages recovered, because he had suffered nothing. He paid for the use of the mill according to the value of the rent, deducting the obstruction. He can have no action against the defendants for the same reason, *viz.*that he is not damnified.

The damage to the plaintiff was immediate ; it reduced the value of his property and the rent ; as owner of the property he is entitled to the action. The question only is, whether his proof supports his declaration. He declares he was seised and possessed of the mill ; the evidence was, that part of the time he carried on the mill in company with his son, and for the residue of the time it was carried on by his two sons. It does not appear for what time or under what terms the sons had the use of the mill; it must be presumed therefore that they were but tenants at will. The injury was in fact done while the plaintiff was in possession and before any contract with his sons, for by the contract a deduction was made from the rents to accrue during the time they should hold. The daily diminution of profits was consequential upon a wrong done while the plaintiff was in actual possession. On this ground, and because the damage was only to the plaintiff, we think the proof supports the declaration. In the case of *Starr*v. *Jackson,*cited in the argument, the question was merely on the form of the action, whether it should be trespass or case. Here there is no question about the form of the action, but merely whether the evidence shows that the plaintiff was in possession ; technically he was, because the possession of the tenant at will is the possession of the landlord, and is enough to prove the fact alleged of possession : and as to the injury, it is clear that it was done to the plaintiff, and that all the damage was suffered by him. Under these circumstances it would be too strict to put the parties to the expense of another trial if there were a technical error in the declaration ; which however we do not think satisfactorily made out.

It is said that in the case of *Baker*v. *Sanderson,*reported in 3 Pick. 348, a different doctrine wras advanced by the Court; but we do not see that case in this light. The second count m the declaration was objected to, because it alleged that *207uther persons than the then plaintiff were in the actual possession of the mill during part of the time for which damages occasioned by the defendant had been given by the jury 5 but that objection was overruled, because in the same count it was averred that the plaintiff had reduced his rent on that account. Now it is inferred from this in argument, that because in the present case the plaintiff has alleged that he was possessed, this allegation is contradicted by the evidence that the sons during part of the time had the use of the mill; but such an inference is not necessary. The objection was, that the count was bad because it alleged, that during part of the time when the injury happened, the mills were in possession of another. This would have been insuperable, as is stated in the opinion, but for the subsequent averment of the reduction of the rent, for the plaintiff would have himself shown that the lessee, and not he, had suffered the damage.1

In the present case the objection is not to the count, but to the evidence. The plaintiff avers that he himself was seised and possessed ; it turns out that for one part of the time one of his sons occupied with him, and that for another part, his two sons occupied without him, not under lease, but as we suppose by some verbal contract. This evidence did not negative his possession, for in law he was still in possession ; and then as to his right to recover under these circumstances, it appearing that on account of the obstruction he had reduced the rent, the case is brought within the principle on which the case of *Baker*v. *Sanderson*was decided.

It is perfectly clear, that no prescriptive right to maintain the flash-boards was proved by the defendants ; nor was there any such use as laid a foundation of presumption of a grant; as it was proved that when ordered to be removed they were removed, and as late as 1823 the right of the plaintiff to have them removed was acknowledged, permission having been then asked to raise them, and a compensation offered therefor. The instruction of the judge was certainly correct on this point, and the jury must be understood to have found the fact, that *208the defendant kept the boards up only by permission of tne plaintiff.

The plaintiff had a right to calculate upon the state of things as they existed when he erected his mill. There was then a dam on the defendants’ privilege, but no flash-boards ; nor were there any until a year afterwards. This was then a new obstruction by the defendants contrary to the plaintiff’s right and this right was admitted and acquiesced in by the defendants. There is no such right as the defendants claim, to raise by flash-boards the water to a level with the bottom of the plaintiff’s wheel. Both parties had a right to use their water privilege. The defendants having first erected their dam to an adequate height for the common state of the water, the plaintiff had a right to work his mill without interruption by any additional dam by the defendants.

The verdict is therefore right, and the judgment will be entered accordingly.

1

 See *Anderson*v. *Nesmith,*7 N. Hampsh. R. 167; *Robertson*v. *George,*7 IN. Hampsh. R. 306; *Little*v. *Palister,*3 Greenl. 6.

Putnam J.

dissenting. With great respect for my learned brethren, I am of opinion that the plaintiff ought not to retain this verdict. It is not *secundum allegata et probata.*The declaration is upon an injury to the *possessory*right to the whole mill, during the whole time set forth, and the verdict has been found accordingly. The proof is, that the possession (except of a moiety for a part of the time) was in lessees at will. They, and not the lessor, Were entitled to the damage for *the diminution of the daily profits,*for which the plaintiff has declared. So that the plaintiff has, by his own showing, recovered by this verdict what did not belong to him. The defendants made their objection as soon as the plaintiff disclosed his evidence, and the case is to be considered as it stood when the objection was made, and is not to be aided by the verdict. The objection was, that the evidence proved that, during part of the time, the plaintiff had leased one moiety to his Son as a tenant at will, who with the plaintiff jointly was in the actual occupation, and during the residue of the time, the plaintiff had. leased the whole to tenants at will, who had the actual possession ; so that the plaintiff had not, at any part of the time set forth, the exclusive possession of the whole. The plaintiff replied, that it was matter in abatement, if the lessee *209at will should have joined in- the action with the plaintiff for the time they were jointly possessed. Supposing that to be so, the consequence would not follow, that the plaintiff should recover for more than belonged to him. The jury should have been instructed to find for the plaintiff for one moiety of the damage arising during their joint possession. The lessee at will, who occupied the other moiety, is entitled to recover the damage to his moiety. Where the defendant does not plead the nonjoindei of the plaintiffs in abatement, he is to have the benefit of the fact in the apportionment of the damages. He is not obliged to plead in abatement. He may be willing to answer to the suit of each separately, but that is the extent of the admission by waiving the plea in abatement. The one who sues for the whole, but proves that another was entitled to a moiety, shall not be permitted to recover more than a moiety. 1 Cbitty on PI. 53 ; *Bloxam*v. *Hubbard,*5 East, 407 ; *Addison*v. *Overend,*6 T. R. 770. And the lessees at will would have been entitled to the damages for the obstruction, during the residue of the time, when they were in possession. But the Court permitted the evidence to go to the jury as sufficient to warrant the verdict for the whole claim for which the plaintiff declared, which was for the damage to the possessory right of the whole of the mill for the whole of the time declared upon. I think the evidence which the plaintiff offered supported the declaration so far only as I have above stated. To that extent only did the plaintiff prove any injury to his *possessory right.*

It is true, indeed, that the evidence further proved an injury to the inheritance, *viz.*in the compelling the plaintiff to reduce his rents in consequence of the same injurious act. But the plaintiff has no count in his declaration upon that cause of action, and cannot therefore avail himself of the evidence to support a verdict for that cause. If a stranger, for example, should cut down a tree bearing fruit, upon land leased to a tenant at will, the tenant could maintain an action for the loss of the fruit, the landlord for the destruction of the tree. But if the landlord should sue and declare only for the fruit during the continuance of the lease, he could not recover ; because it belonged to his tenant. And it would not make the land*210lord’s case any better, if he went on with his evidence and proved that the stranger not only took away the fruit, but that he cut down the tree also ; for the plain reason, that the stranger was not sued for cutting down the tree, but merely for taking the fruit. The general rule certainly is, that in an action of trespass the plaintiff cannot give in evidence any injury which is not charged in the declaration. The only exception that I recollect, is where the injury complained of arises *ex turpi causa;*in which case the plaintiff is not obliged to set that forth at large upon the record ; but in all other cases of trespass, the special matter for which the damages shall be given must be set forth in the pleading. As, for taking a horse, no other matter is to be given in evidence except that which is expressed in the declaration. *Sippora*v. *Bassett,*1 Sid 225 ; Bac. Abr. *Tresp. K.*So if a declaration be for cutting down trees, the plaintiff cannot recover by proof that the defendant lopped the trees.

I consider it to be very clear, that the causes of action oí the lessee (no matter whether at will or for years) are distinct from those of the lessor. If the action be by the lessor for damage done to the inheritance or reversionary interest, he must state particularly his estate and the manner in which the injury has been done, as in *Jesser*v. *Gifford,*4 Burr. 2141, for obstructing the plaintiff’s lights : and in *Leader*v. *Moxton, et al.*3 Wils. 461, for raising the street in front of the plaintiff’s houses, obstructing the passage, &c. *Beddingfield*v. *On-slow,*3 Lev. 209. The doctrine that the lessor and lessee may each have a remedy was recognised in *Starr*v. *Jackson,*11 Mass. R. 519. They (says the Chief Justice) are both injured, but in different degrees : the tenant in the interruption to his estate, and the *diminution of his profit;*and the landlord in the more permanent injury to his property, — and damages are to be recovered according to the respective interests of the several parties. *Vide*2 Chitty’s PI. 386, count by tenant at will, &c. The damage which a lessee sustains from deprivation of the profits of his land is recoverable in an action of trespass. 19 *H.*6. 45. And the lessor may recover for the destruction of his land by digging, &c. Co. Lit. 57, S. P. And if the damage arise to the lessee and to the *211reversioner by the same unlawful act, each is to recover for the damage severally sustained. 12 *H.*6. 4. *pi.*11 ; 2 Roll. Abr. *Tresp. N, pi.*3, 4, 5, *7.*

But I think this Court has heretofore adjudicated upon the legal effect of the evidence produced. It is precisely like that which was offered in *Baker*v. Sanderson, 3 Pick. 352. In that case the action was for causing water to flow back upon the plaintiff’s mill; and the evidence was, that for a part of tire time the mill was occupied and possessed by the plaintiff, and part of the time by his tenants at will, and that the plaintiff was obliged to reduce his rent. There were two counts ; the first was upon his possession ; the second for the injury to the inheritance. in being obliged to reduce his rents. The defendant objected that the plaintiff could not recover on the second count as the possession was in the tenants; but the Court overruled the objection, because the second count described the injury to the reversionary interest which was proved. The Court held that the evidence applied partly to one count and partly to the other ; ” — “ so that both counts were supported by the evidence and were necessary.” The Comí further held, that this objection would have been *insuperable,*had it not been alleged, that the plaintiff, in consequence of the obstructions complained of, had reduced his rents, at the request of the tenants, they threatening to quit unless he would agree to a fair reduction,” &c.

As in the case at bar such an objection is made, and there is no such comit or allegation, I still think the objection “ is insuperable.”

I know it may be suggested, that the plaintiff discloses a good cause of action, and that substantial justice has been done ; but with great submission, I do not think substantial justice has been done, according to the case stated by the plaintiff and the evidence which he produced in support of it. He has been permitted to recover for daily profits, which upon his own showing belonged to his tenant ; or for damage to his reversionary interest, for which he has not declared.

The course upon the trial, I think, was clear. The plaintiff should have prayed for leave to amend by adding a second count like that which we thought to be necessary in the case *212of *Baker*v. *Sanderson,*and such an amendment would have been granted upon terms. If the plaintiff had elected to proceed upon the evidence he offered, the jury should have been instructed to ascertain the damage to the plaintiff’s, moiety during the time he was in possession, and to have found a verdict for that only. And the damage for the obstruction during the rest of the time, when the tenants had the exclusive possession, should not have been found for the plaintiff, who was suing and declaring merely for an injury to his possessory right.