#### Jacob Thompson *versus*Samuel Crocker *et al*

In an action of the case for damage to the plaintiff’s mill situated m the county where the action was brought, occasioned by a dam erected by the defendants on the same stream and alleged, under a videlicet, to be in the same county, the proof was that the dam was in another county. Held, that the variance was immaterial.

The owner of a mill is not entitled to damages for a mere theoretical injury to his mill, occasioned by another mill on the same stream, but for any actual perceptible injury he is entitled to recover.

This was an action of the case, in which the plaintiff declared that he was lawfully possessed of four mills upon Taunton river, “at a place called Titicut Falls, in the parish of Titicut in the said county of Plymouth,” and that the defendants had wrongfully kept up a certain mill-dam across the river “ below the said mills of said Jacob and between the same and said Mount Hope bay, to wit, at the parish aforesaid,” and thereby caused the water to flow back upon the plaintiff’s mill-wheels, whereby the plaintiff had been deprived of the profit, that would otherwise have accrued to him from the working of his mills, “ to wit, at the parish in the said county of Plymouth.”

The defendant pleaded the general issue.

At the trial, before Morion J., it appeared that the defendants’ dam was in Taunton, in the county of Bristol. The defendants contended that this was a fatal variance from the declaration ; but the judge, intending to save this question, overruled the objection.

Much evidence was given to the jury as to the height of the water caused by the defendants’ dam, and as to the impediments to the plaintiff’s mills caused by a profusion of water. It appeared that during freshes the plaintiff’s mills were obstructed and rendered useless before the erection of the defendants’ dam, and that except in extreme droughts the water had always flowed backed upon the plaintiff’s apron-way and upon his wheel, before as well as since the erection of the defendants’ dam. Evidence was also given, tending to show that if any damage was done to the plaintiff’s mills, it was caused when the water was unusually high ; the water, by reason of the defendants’ dam, being increased at the plaintiff’s mills and not *61passing off so soon as it would if the defendants’ dam were away. There was also evidence tending to show, that at ordinary runs of water the defendants’ dam did not cause the water to flow back upon the plaintiff’s wheel or upon his apron-way ; and there was also evidence tending to show the reverse.

Upon this evidence the defendants requested the judge to instruct the jury, that the plaintiff could not sustain his action for slight inconvenience in the working of his mills caused by the defendants’ mill-dam by increasing or accumulating the water in the river below the plaintiff’s mills, or for slight inconvenience arising in the time of freshes or unusual floods of water, provided it did not extend to the destruction or material and permanent diminution of the uses of the plaintiff’s mills and did not cause the water to flow back upon the plaintiff’s mill-wheel, so as to cause something more than a nominal injury.

The judge instructed the jury, that if the plaintiff had proved that his mills had sustained any actual perceptible damage in consequence of the erection of the defendants’ dam, he was entitled to recover; but that for a theoretic injury, or damage to be inferred from the obstruction of the water by the defendants’ dam, and from the principle that any obstruction of the water below would prevent it from passing from the plaintiff’s mills so readily as it would without such obstruction, the defendants were not answerable. The jury were also instructed, that the above directions extended to the state of the water as it was proved to exist, or as there was any evidence tending to prove it existed.

The jury returned a verdict for the plaintiff. The defendants moved for a new trial on account of the above instruction or decision.

*W. Baylies*and Eddy, for the defendants.

The nuisance complained of is local, and the allegation that it was in the county of Plymouth should have been supported by proof. This case is similar to that of *Warren*v. Webb, 1 Taunt. 379. See also Stephen on Pl. 308, 309 ; 1 Chit. Pl. 282 ; 3 Stark. Ev. 1574, cites 3 Yeates, 428.

In regard to the damages, the maxim *sic utere tuo*&c. does not apply to this case ; but the riparian proprietors have each a right to use the water in a reasonable manner, in reference to *62the others ; and if in such use the owner of land above suffers any damage, it is *damnum absque injuria.*If an action lies for every perceptible injury, the owner of the first erected mili has a monopoly of the stream. Palmer v. Mulligan, 3 Caines’s R. 307 ; Platt v. *Johnson,*15 Johns. R. 213 ; *Merritt*v. *Brinkerhoff,*17 Johns. R. 306 ; Com. Dig. *Action upon the Case for a Nuisance, C; Tyler*v. *Wilkinson, 4*Mason, 397.

*Warren,*for the plaintiff,

cited on the first point, *The Company §c. of the Mersey and Irwell Navigation*v. *Douglas, 2 East,*497.

Parker C. J.

afterward drew up the opinion of the Court. As to the first point, to wit, that the allegation in the count, that the defendants’ dam which caused the injury was in Titicut in the county of Plymouth, whereas the evidence 'roved that the place where the dam stood was in the county of Bristol, and therefore there is a variance between the *allegata*and *probata,*we do not think it material; for the injury done to the plaintiff’s mills is the substance of the complaint, and the place where the injury was done, to wit, at the mills, gives the locality to the action, and not the source from which the mischief came. The evidence of a dam anywhere below the plaintiff’s mills unlawfully, whereby the use of the mills was impaired, would give the right of action in the county where the mills stood ; and it was wholly unnecessary to allege in what county the obstruction was erected. This is the doctrine of the case cited from 2 East, 497, as very clearly stated by *Le Blanc*J.1

As to the second point, the direction of the judge to the jury appears to us to be correct. The plaintiff suffered an ac tual damage in the use of his mills by reason of the height given to the defendants’ dam. We do not see how he can be refused his legal compensation, because his damage was small ; and we should feel at a loss to fix the amount of injury above which there should be a right of action, and below it, none.

1

 See *Barden*v. *Crocker*10 Pick. 383.