#### Barnabas Holmes *versus*Hannah Drew.

To a complaint against a mill-owner for flowing land ten years, the respondent pleads that the complainant ought not to have a jury to estimate any damage against her for damage sustained during a portion of the time, for that before a certain day specified, she was neither the owner nor occupier of the mill or dam. Plea held bad, as not covering the whole complaint, nor showing any reason why the complainant should not have a jury.

A mill-owner is not liable under *St.*1795, *c.*74, (“ for the support and regulation of mills,”) for damage done by flowing before his title commenced.

At the Court of Common Pleas, November term 1827, Holmes presented a complaint, setting forth that he is seised in fee of certain land in Kingston, on both sides of Smelt Brook, and that for more than ten years last past Hannah Drew has maintained across the brook a mill-dam, by means of which the land has been overflowed, to the annual damage, &c. wherefore he prays that a jury may be impannelled to appraise the yearly damage, and to find how far the flowage may be necessary, and to administer such other remedy, &c.

The respondent defends as to a portion of the time mentioned in the complaint, and prays judgment whether the complainant shall have a jury to estimate any damage against her for damage sustained before May 18, 1824, because before *147that day she was neither the owner nor occupant of the mill or dam.

*Oct. 22d.*

The complainant replies, that he ought not to be precluded from having a jury for the purposes, and for all the time, mentioned in the complaint, because on September 30, 1817, Seth Drew was seised in fee of the mill and dam and continued so seised until his death in 1824; that by his last will he devised the same to the respondent; that the will was approved and allowed on June 2, 1824, and on the same day the respondent became seised of the dam and mill and continued so seised until the service of the complaint; and that during all the time of the seisin of Seth Drew the land of the complainant was flowed.

The respondent demurs, alleging that the matter in the replication is not sufficient for the complainant to have a jury to assess any damage prior to May 18, 1824, and praying judgment whether he shall have a jury to assess any damage prior to that day.

The complainant joins in demurrer and says that the re plication is sufficient to entitle him to a jury for the purposes and for all the time, &c. and prays that he may have a jury for the purposes and for all the time, &c.

Eddy, for the complainant.

The owner of the land flowed has no remedy against a former owner of the mill. The statute does not speak of successive mill-owners, but authorizes a complaint against “ thé owner or occupant.” There cannot be two complaints, for the height of the dam and the time in which the flowing shall be permitted, are to be settled by the jury, and this must be done on the complaint against the present owner. The past owner has no interest in those questions. Should there be two verdicts fixing different heights and yearly damages, there would be a repugnancy, which it would be difficult to surmount. The land-owner is not to lose his remedy for damages sustained while the mill was in the possession of the Former owner. The title to the mill may change by descent or devise, during the pendency of the complaint. The purchaser of the mill is to inquire, when he makes the purchase, what is the amount of the flowage and whether any thing is due for past damages, and the consideration will be regulated accord*148ingly. The case hears an analogy to an action of dower, in which former damages are recovered against the present tenant of the freehold. *Parker*v. *Murphy,*12 Mass. R. 485 ; Jackson on Real Actions, 313. This is a process *in rem,*against the mill occasioning the damage. He cited also, *Stowell*v. *Flagg,*11 Mass. R. 364 ; *Commonwealth*v. *Ellis,*ibid. 464 ; *Johnson*v. *Kittredge,*17 Mass. R. 76.

*Oct. 23d.*

*Beal, contra.*

The respondent is not liable for dar. nges which accrued before she became the owner of the mill. The complainant’s remedy is *in personam,*and not against the mill. If the past owner of the mill has no interest in the question respecting the height of the dam, neither has the present owner any knowledge of the former damage. If the complainant has lost his early damages, it is owing to his own laches in not seeking his remedy in season.

If the plea is sustained, the respondent moves for costs. The complainant fails entirely in the object for which he came into this Court. [ *Wilde*J. Your plea does not answer the whole complaint.] We admit part of it by implication. 1 Chit. PI. 511, 512. There is no practical difficulty in admitting part, and denying part. The complainant might have had a jury for the damages for which the respondent admits herself to be liable.

*Per Curiam.*

The plea is insufficient, because it does not cover the whole complaint. It says the respondent is not liable for damages happening before a certain day ; but if she is liable for the subsequent damages, the complainant has a right to a jury.

We think proper to remark, that we are clearly of opinion that the respondent is not answerable for damage done before she became the owner of the mill-dam.1

*Plea adjudged bad and the case remitted, tyc.*

1

 See *Charles*v. *Monson*& *Brimwfield Manuf. Co, 17*Pick. 70.