#### Moses S. Baird *versus*Isaac Hunter *et al.*

When a mill is disused and removed and not replaced, the dam ceases to be a mill dam under the protection of the mill acts, and the remedy for the owner of land which is flowed by it is an action at common law.

In such action the plaintiff can recover only for the injury caused by the dam since it ceased to be under the protection of the mill acts.

This was an action on the case for flowing the plaintiff’s land. The defendants pleaded the general issue, which was joined : — Also, that the cause of the flowing complained of was a mill dam erected by the defendants on their own 'and ; *563to which the plaintiff replied, that it ceased to be a mill dam ffom the first of October 1829 ; on which issue was joined.

At the trial before *Morton*J., the plaintiff contended, that there being no mill at the time when the suit was commenced, the only remedy was by an action at common law, and that the period for which compensation might be recovered for the injury done to the plaintiff by flowing, should extend to and throughout the time when the mill was in operation ; but the judge overruled this position, and the plaintiff excepted to his opinion. The mill was removed in October 1830, but it had not been used after May 1830. The judge instructed the jury, that the period for which the plaintiff might recover a compensation in damages in this action, was from the 1st of May 1830, to the 6th of June 1831, the date of the writ.

A verdict was found for the plaintiff for $ 12-70. If the judge was incorrect in overruling the ground taken by the plaintiff, a new trial was to be granted.

Hubbard, for the plaintiff,

cited *St.*1795, c. 74, § 1.

*Sept. 21st*

*Sept.*22rf

*Dwight*and *Filley,*for the defendants,

cited *Commonwealth*v. *Ellis,*11 Mass. R. 465 ; *Stowell*v. *Flagg,*ibid. 364.

*Per Curiam.*

It has been repeatedly decided in this Commonwealth, that by force of the statutes commonly called the mill acts, an action on the case will not lie for damage done to the land of another, by flowing, when it is occasioned by the erection and use of a mill dam, and that the only remedy is by the statute.1

Here it appears that the flowing complained of was occasioned by a dam upon which a mill was in operation till May 1830, that "the mill stood till October following, when it was removed, and that the dam continued till June 1831, when the action was commenced.

We think the rule of damages was sufficiently favorable to the plaintiff, in permitting him to recover damages, for the whole period, after the mill had ceased to operate. Had it been carried to a period anterior to that time, it would have been directly opposed to the series of decisions on the mill acts above alluded to. We think also, that the direction was

*564right upon the other point; that as the mill was never repaired after it ceased to operate in May 1830, and was afterwards removed and not replaced, the dam was properly considered as having ceased to be a mill dam under the protection of the mill acts, from that time.1

*Judgment on the verdict.*

1

 Rev. Stat. c. 116, § 30; *Baird*v. *Wells,*22 Pick. 312.

1

 See *Fiske*v. *Framingham Menuf. Co.*ante, 68.