#### Henry B. Boynton *et al. versus*Isaac M. Rees.

If the plaintiff owns a mill on one side of a river, and the defendant a mill on the other side, with a dam in common, and each is entitled to the water alternately six months in the year, each has a right to repair his own floom at any time of the year; more especially where each has a right to the surplus water not required by the other’s mill.

In such case, if the defendant uses ordinary diligence in making the repairs, he will not be responsible for an accidental damage to the plaintiff.

Where such defendant, in order to prevent great injury to both parties from an accident occasioned by him in making repairs, but without negligence on his part, found it necessary to raise the waste gate and remove the flash-boards of the plaintiff, it was held that he was not liable for the damage.

Tiie *St. 8 ^9 Wm.*3, c. 11, § 7, respecting survivorship of actions, has, *it seemsf*been adopted in this Commonwealth.

Upon the death of one of several plaintiffs in an action of trespass *guare clausum fregit9*rhe action, by *St.*1828, c. 112, survives to his co-plaintiffs.

Trespass, for an injury done to the plaintiffs’ mill-dam Plea, the general issue.

The plaintiffs, and those under whom they claim, owned a stone saw-mill on the east side of Williams river, and had made use of the dam for more than twenty years. The de*538fendant owned a fulling-mill on the west side of the river. On the 11th of July, 1827, the defendant, after making a temporary dam, took away an old floom on the west bank and dug the dirt away for the purpose of putting in a new floom. This weakened the temporary dam in such a manner that the water pressed through it and undermined it; and to prevent the water from doing damage, the defendant tore off the flash-board" and hoisted the waste-gate of the dam, east of the centre of the river. The effect of this was, to deprive the plaintiffs of the use of their stone saw-mill wholly for two or three days, and partially for ten weeks.

On the part of the defendant it was contended, that he had a common right in the dam with the plaintiffs ; and that he was not liable for the injury. He proved that twenty-two years previous to the alleged trespass, one Curtis, under whom he claims, with certain persons under whom the plaintiffs claim, built the dam, ánd that the plaintiffs and the defendant had re paired it together from time to time, and that until the time ol the trespass the water-privilege had been used in the following manner, viz the preference in the use of the water had always been claimed by the proprietors of the stone saw-mill, except for the season of fulling cloth for customers, which was stated to be from the 1st of September to the 1st of March, during which period the owners of the fulling-mill claimed the preference for fulling cloth for customers.

The defendant contended, that inasmuch as the injury happened to the plaintiffs when he was in the act of repairing his floom, he ought not to be charged with the damage sustained ; but the plaintiffs insisted, that between the 1st of March and the 1st of September in each year, they had a right to the full use of the water for carrying their mill, and that the defendant had no right, for the purpose of repairing his dam, to do any thing which should injure them in the full use of the water, and that if, from any attempt of the defendant to repair his floom, he had rendered it necessary, in order to prevent greater damage, to hoist their waste-gate and take off their flash-boards, he must be answerable in damages ; and that it was his duty, in making his repairs, to have taken such precautions as would have prevented any damage to the plaintiffs.

*539
      *Wilde*J.

ruled, that the defendant had a right to make repairs upon his floom between the first of March and the 1st of September ; and that he was not answerable for the damage done to the plaintiffs in taking off their flash-boards and hoisting their waste-gate, provided the jury should be satisfied, that in making the excavation below the dam for the purpose of repairing his mill, he had used due and ordinary diligence ; and the question whether he had used such diligence was submitted to the jury.

To this opinion and direction the plaintiffs excepted.

In the vacation preceding the present term, one of the plaintiffs died, and the surviving plaintiff suggested his death as a ground to abate the suit.

*Dwight, C. A. Dewey*and Porter, for the plaintiffs.

From the 1st of March to the 1st of September the plaintiffs had an exclusive right to the use of the water, unless there was more than their mill required, and the defendant had no right to make his repairs during that period, and he must be responsible for the damage occasioned by repairing at an improper time.

Ordinary diligence is such as a prudent owner of the whole dam would use. As the defendant owned only half of it, he was bound to use more than ordinary diligence.

But if not, still he had no right to hoist the plaintiffs’ gate and take off their flash-boards, even for the purpose of preventing a greater injury to himself and perhaps to the plaintiffs.

The defendant’s right to repair rests upon presumption, and as he never repaired before, except when he had the preference in the use of the water, his presumptive right is not to be extended beyond the use. *Stanley*v. *White,*14 East, 340; *Bealy*v. *Shaw,*6 East, 208 ; Angelí on Water-Courses, 48 ; 1 Phil. Ev. (N. York ed.) 122.

The action has abated by the death of one of the plaintiffs. 1 Chit. Pl. 55 ; 2 Wms’s Saund. 72 *i,*72 *m;*3 Bac. Abr 707, *Joint Tenants 8fc., K; Mams*v. *Deland,*7 Pick. 62; *Anonymous,*Cro. Car. 509 ; Com. Dig. *Abatement, H*32. This case is not within *St.*1828, c. 112, which provides, that where a party dies, his executor may come in to prosecute or defend, for here the wnole party plaintiff is not deceased. No *540case is to be found, where an- executor is one of the plaintiffs and an individual in his own right, another.

*Bishop*and Byington, *contra.*

If the suit does not survive to the surviving plaintiff, it must to the executor of the deceased, by virtue of the statute of 1828.

' The plaintiffs and the defendant were tenants in common in the dam. There was a necessity for saving the common property by hoisting the plaintiffs’ gate and tearing down their flash-boards ; and that necessity was created by the defendant in doing a lawful act. The time taken for making the repairs is immaterial, for if the defendant had repaired at a season when he was entitled to a preference in the use of the water, the plaintiffs would nevertheless' have sustained a loss, they being then entitled to the use of the surplus water. The parties must make repairs together, when their common property requires it; and when the individual interest of either is alone concerned, he must repair in the manner which a prudent owner of both mills would adopt. 3 Stark. Ev. 1672, 1674, 1444 ; *Alder*v. Savill, 5 Taunt. 454 ; 6 Bac. Abr. Trespass, *F.*

*Per Curiam.*

The parties were jointly liable to keep the dam in repair, nothing to the contrary appearing, and the floom contiguous to the mill of either was to be supported at his individual expense. It seems clear that this right to repair extends throughout the year. If there was a preference in the use of the water during part of the year, but not an exclusive right, then the defendant was entitled to the surplus water, and he had a right to repair on that account. But besides this, either party had not only a right to keep his floom in repair, for his own use, but his duty required him to do so, in order to save the water for the use of the other party.

The defendant then having had the right to make repairs, the question was, whether he used ordinary diligence. This question was submitted to the jury with instructions that were correct. If the defendant was bound to keep his floom in repair, he is not answerable for the accidental consequences of repairing, provided he was not guilty of negligence. If any accident happened which-rendered extraordinary steps necessary in order to preserve the common property, as lifting the waste-gate or removing the flash-boards of the plaintiffs, he *541had a right to enter on the plaintiffs’ land and perform these sets.

The judgment therefore must be for the defendant upon the verdict, unless the death of one of the plaintiffs abates the action.

Upon this question the cause was continued *nisi,*and the following opinion of the Court was afterwards drawn up by

Wilde J.

The death of one of the plaintiffs being suggested, the question is, whether the action may be prosecuted in the name of the survivor.

This is an action of trespass, and by the principles of the common law the death of one of the plaintiffs would abate the writ, because the cause of action is charged as arising *ex delicto ;*and such an action does not survive to the executor. But by the *St.*8 *fy*9 *Wm.*3, c. 11, § 7, the death of one plaintiff or defendant, when there is another surviving, shall not abate the suit. It is said that this statute has not been adopted in this Commonwealth. How this may be in point of fact, does not appear, but as it was made in amendment of the common law, it seems that it may be presumed to have been adopted here.1
      *Commonwealth*v. *Leach,*1 Mass. R. 61 ; *Commonwealth*v. *Knowlton, 2*Mass. R. 535.

But if this position cannot be maintained, we are of opinion that the survivor may prosecute the action by virtue of *St.*1828, c. 112. This statute provides, “ that all actions for injuries done to real estates, and which do now abate by the death of the parties to the same, shall be considered as actions and suits, which survive to the executor or administrator of such deceased parties, and may be prosecuted and defended in the same manner, and to the same extent, as might have been done by the testators or intestates respectively, during their lives.”

According to the literal construction of the statute, the executor or administrator of the deceased party might be admitted to prosecute jointly with the surviving plaintiff. But we do not think that such is the true meaning of the statute. The *542language is, that actions of this description shall be considered *as acti°ns andsuits, which survive to the executor or administratar;*” and the intention is, no doubt, that they are to be prosecuted in the same manner, as actions of assumpsit and other actions which by law survive. This we think is the true meaning of the statute.2 If, however, we were of a different opinion, I should see no difficulty in admitting the executor of the deceased party to come in, and prosecute the action, jointly with the surviving plaintiff.

See *Patterson*v. *Winn,*5 Peters, 241; 1 Baldw. 559; *Colley*v. *Merrill,*6 Greenleaf, 55; *Sackett*v. Sackett, 8 Pick. 309 ; *Sibley*v. Williams, 3 Gill & Johns. 62; *State*v. Campbell, Charlton, 167.

See Revised Stat. c. 93, § 12; *Haven*v. *Brown,*7 Greenleaf, 421; *Wilson*v. *Slaughter,*3 J. J. Marshall, (Ken.) 595.