Barnes, J.
On complaints for flowing under R. S., Chap. 106, Secs. 1-88, bills of exceptions to the ruling of the superior court were argued together before the law court.
The erection and operation of Wyman Dam, between Moscow and Pleasant Ridge, in Somerset County, occasioned a material change in the surface level of the Kennebec River above the dam, and flowing of riparian lands on each side, including such lands of both plaintiffs, the Bingham Company land, at the southerly bound of Carrying Place Plantation, west of the river, and the Bean Land, in Carratunk, east of the river and far above the Bingham Company land.
There is no community of interest in the complainants but the lands of each extend to the mid-thread of the river, and the principles involved are identical in the two cases.
Prior to the erection of the dam, on and opposite complainants’ lands, the river flowed, in volume affected by seasonal and climatic variations, down a channel, over no natural pitch and affording no site for a mill, as the term is understood in New England.
The contention of plaintiffs is that by the flowing they have suffered loss of current; that the current of which they are deprived is a valuable incorporeal hereditament, incident to their lands, not to be taken from them by another except upon payment of compensation.
In other words, suspension of the enjoyment of the flow of water in a swift current through complainants’ lands and the substitution of flow of the same volume of water by imperceptible current is what is complained of.
The flowing is admitted and the problem is to determine what are the factors that go to make up damages.
The parties agree that time and expense will be saved to all if the [12]*12rule of compensation may be determined for the guidance of the commissioners, who, under the law, shall determine the same; and complainants admit that neither they nor any of their predecessors in title had, before the building of the dam, taken any steps toward construction of a dam at any point within their respective bounds.
Defendants’ position is that the right of an upper riparian owner to raise a head of water on his land is not absolute, but is contingent upon the fact of steps of construction being taken by the upper owner before a lower owner has built and flowed the upper owner’s privilege; that if there are, on the same stream two undeveloped power privileges, construction on the lower, which flows and renders useless as a power privilege the upper site, while entailing on the upper owner what may prove to be a loss, does not make the lower owner liable for such loss as may be based on inability to make a profit from development of the upper power privileges.
Industrial development had not advanced in England, at the time of first New England settlement, to the stage of construction of dams for sawing timber or grinding grain by water power. It is said that saw mills driven by water power were in successful operation in New England more than thirty years before an attempt was made to build such in the mother country.
Permanent settlements in the area, now the State of Maine, were established before enactments of the Massachusetts Bay Colony were accepted and recognized as the law of this locality.
On Captain John Mason’s plantation, in what is now York County, in this state, a saw mill was built in 1631. See Ridlon’s “Saco Valley Settlements and Families,” p. 191.
Such rules of English common law as the early colonists adopted became the common law of the land of the colonists, together with other laws deemed by them to be of prime importance and adapted to the needs of the inhabitants of the new land.
Under the common law of England the bed of a river was the property of the state; a riparian proprietor owned only to low water mark on the shore of a river. At the time of the first settlements in the new world the chief service of a river was as a highway.
Obstructions on a river bed were abatable if proven a nuisance to the public.
[13]*13In England there was recognized the exception that an obstruction erected by the sovereign was not abatable.
This exception was adopted in New England, with the further exception that dams might be erected, and mills driven by water power might be maintained, as of public use and benefit. Hence the expression mill privilege.
Under the common law as recognized by Massachusetts Bay Colony, a proprietor’s land, bounded on a stream extended to the mid-thread of the current.
If one owned the banks on both sides of a river, above the reach of the tide, he owned the bed of the stream, and his dam, on his land, could not be prostrated unless by order of Court for the abatement of a public nuisance.
Under the doctrine of reasonable use, common law rights and duties protected and restricted those who would develop a mill privilege, for examples, they had the right, as against the public, to convert a current, valuable to timber men, to a still pond; and the duty not to obstruct a river below the mark to which the tide of ocean flowed.
Experience showed that raising a head of water sufficient for reasonable operation of a mill frequently flowed river banks and adjoining lands beyond the bounds of what the mill man owned or could control by virtue of grant; and controversies and law suits ai'ose. Wherefore the mother colony, in 1714, enacted legislation, the first Mill Act, so far as Maine is concerned, “That where any person or persons have already, or shall hereafter, set up any water-mill or mills, upon his or their own lands, or with the consent of the proprietors of such lands legally obtained, whereupon such mill or mills is or shall be erected or built, that then such owner or owners shall have free liberty to continue and improve such pond, for their best advantage, without molestation.”
Then, in harmony with the common law rule that if one man’s property is taken, to another’s advantage, the taker shall make good the loss, the Act provided for an impartial, “apprisal of the yearly damage done to any person complainant, by flowing his or their land as aforesaid.”
A similar act was passed after the establishment of the Com[14]*14monwealth of Massachusetts, and by the first legislature of Maine, Public Laws, 1821, Chapter 45.
Then, by R. S., 1841, Chapter 126, our legislature provided: “Any man may erect and maintain a water mill and a dam to raise water for working it upon and across any stream that is not navigable upon the terms and conditions and subject to the regulations hereinafter expressed”; and in the regulations provided by Section 2, “No dam shall be erected to the damage of any mill lawfully existing either above or below it, on the same stream; nor to the injury of any mill site on which a mill or mill dam shall have been lawfully erected and used, unless the right to maintain a mill on such last mentioned site shall have been lost or defeated by an abandonment, or otherwise.” >
Subsequent amendments not vital here, have been made, and the present law, R. S., Chapter 106, prescribes: “Any man may on his own land, erect and maintain a water mill and dams to raise water for working it, upon and across any stream, not navigable; . . * upon the terms and conditions, and subject to the regulations-hereinafter expressed”; retains the clause of exception, Section 2 ; by subsequent section provides; “Any person whose lands are damaged by being flowed by a mill-dam . . . may obtain compensation for the injury, by complaint to the superior court” etc.; and,, if injury compensable in damages is established, by section 9 provides ; “The court shall appoint three or more disinterested commissioners of the same county who shall go upon and examine the premises and make a true and faithful appraisement, under oath,, of the yearly damages, if any, done to the complainant by the flowing of his lands . . . described in the complaint. . . . They shall also-ascertain, determine and report what sum in gross would be a reasonable compensation for all the damages, if any, occasioned by the use of such dam”; and makes provision for collection of such compensation.
The constitutionality of the act is not questioned.
The fact of its validity is settled. Brown v. DeNormandie, 123 Me., 535, 541, (1924) 124 A., 697.
It is not denied that lands of complainants are flowed by defendant’s mill pond, and it is admitted that damages are to be assessed.for flowing the banks and adjacent lands.
[15]*15But it is urged by complainants that an item of damages to be considered was brought into being because over all that part of the bed of the river that extended to the thread of the current, in its natural state, from lower to upper bounds of each tract described, the level of the river has been raised and the still waters of a mill pond substituted for what was formerly the natural stream, moving “through a narrow valley with a heavy and steady current,” to quote from complainant’s briefs.
They admit that, “no fall or dam site as the term is usually used” existed on the land of either, and state, “Nor is there any (such) natural head or waterfall at the point where the complainant’s land is located above the dam.”
In fine, complainants set up what defendant contends is entirely novel, and not maintainable, the inclusion, as an increment of damages, of the flowing of the bed of a non-navigable river where was no mill site, so as to change swift water to pond water.
Obviously the current of the river was stilled.
But defendant contends that this change, if an injury, is not compensable in damages, and further that damages due for flowing lands of complainants are not to be increased because the bed of the river, at some undesignated point in either complainant’s land, but not on a mill site, to the thread of the stream, might have served as the site of a dam on which a mill may some day in the future be erected and operated at a profit to the owner.
First, as to procedure.
At the return term, when the complaints were entered in court, defendant challenged them by filing exceptions thereto, alleging that they contain matter impertinent to the issue to be tried.
Defendant contended that in seven particulars the allegations of complaint were not pertinent.
The Court sustained the exceptions and ordered portions of the complaints specified in exceptions expunged; complainants filed bills of exceptions, and, without objection on the part of defendant, demand ruling thereon before proceeding further.
Procedure under the Mill Act is substituted for an action at common law for damages. Though brought at law and not in equity, “the process authorized against them is not as tort feasors, but is rather in the nature of a bill in equity, to obtain redress for [16]*16the injury occasioned by the flowage.” Hill v. Baker, 28 Me., 2, 21.
Again, “the process is not an action at law. It is sui generis, in its nature, partaking of some of the elements of a suit at law, but resembling much more a process in equity. It is not commenced by a writ but by a bill of complaint, . . . v
“Viewed in this light, the strict rules of pleading, applicable to suits at law commenced by writs can not apply; but the rules in cases in equity do apply.” Moor v. Shaw, 47 Me., 88; Miles v. United Box Board Co., 108 Me., 270, 80 A., 706.
Exceptions to allegations in a bill in equity, as other “Exceptions to bills may be filed within twenty days after return day, and to answers, within ten days after notice that they have been filed, and shall be disposed of by reference to a master, or otherwise, as the court may direct.” Equity Rules of the Supreme Judicial and Superior Courts, XIX.
In the cases at bar exceptions to portions of the complaints allege such portions to be impertinent.
“By the settled practice exceptions will lie for impertinence in a bill, answer, or other pleadings . . .
“All matters not material to the suit, or if material, which are not in issue, or which, if both material and in issue, are set forth with great and unnecessary prolixity constitute impertinence.” Camden and Amboy Rd. Co. v. Stewart, 19 N. J. Eq., 343.
“Impertinence in equity pleading signifies that which is irrelevant, and which does not, in consequence, belong to the pleading. The word does not include the idea of offending propriety. The full significance of the word is found in the expression not pertinent.” Chew v. Eagan, 87 N. J. Eq., 80, 99 A., 611.
By this practice matter that is irrelevant to the material issues is pruned away, and the issues stand forth clear to the view and patent in substance.
The practice is universal; to test damages improperly claimed, W. U. Tel. Co. v. Morrison, 15 Ala. Apps., 532, 74 So., 88; to bring the complainant within the conditions prescribed by the law relied upon, and to confine his right to recover to that law, Mining Co. v. Chambers, 20 Ariz., 54, 176 P., 839; that matter of law be declared by the Court, not set up in pleadings, Carson v. Miami Coal Co., 194 Ind., 49, 141 N. E., 810; where evidence of the mat[17]*17ters pleaded was not admissible, McDowell v. Grain Co., 177 Iowa, 749, 157 N. W., 173, Stone v. Barr, 111 Kan., 775, 208 P., 624; where averment is evidentiary only; Smith v. Hutcherson, 202 Ky., 302, 259 S. W., 364; New York law so interpreted, De St. Aubin v. Guenther, 232 Fed., 411; to expunge matter that is prejudicial, Case v. Ry. Co., 107 S. C., 216, 92 S. E., 472, Gerlach v. Gruett, 175 Wis., 384, 185 N. W., 195.
The practice is approved in this state; “If equity lends her forms of procedure to effectuate the peculiar provisions of the statute in these (flowage) cases, she should be accorded the privilege of applying her rules of pleading in order to obtain equitable and just results.” Hathorn v. Kelley, 86 Me., 487, 490, 29 A., 1108; Langdon v. Pickering, 19 Me., 214, 216; Spaulding v. Farwell, 62 Me., 319, 320.
The “conscientious pleader,” may be troubled at the intervention of exceptions in an action in law, but as said in De St. Aubin v. Guenther, supra, “Courts do not, however, value so much as formerly their logical integrity, and, if the result be convenient, no harm is done.”
In regular order an appeal taken from any interlocutory decree, in equity, “shall not suspend any proceedings under such decree or order, or in the cause, and shall not be taken to the law court until after final decree.” R. S., Chap. 91, Sec. 55; and subsequent Section 58, with other provisions, directs, “In all other respects such exceptions shall be taken, entered in the law court, and there heard and decided like appeals. . . . The allowance and hearing of exceptions shall not suspend the other proceedings in the cause.”
It is argued that in justice and fairness to all parties the question whether certain allegations in the complaints are not pertinent should be determined at the present stage of the litigation, for the saving of great expenditure of money on both sides, and because the body which must finally determine the amount of damages, very considerable as claimed, the commissioners, will in all probability be in large part laymen, not trained to disregard prejudicial matter that lies on the surface or may seep into the subsoil.
In former cases, as a method qf expediency and equity, the statute rule has been treated as directory.
“A question arises whether a bill of exceptions can be heard in [18]*18this court before a case in equity comes up for final hearing. Generally it would be an irregular proceeding.
“But as the peculiar character of the present question hardly admits of postponement, if any benefit is to be derived from it by the moving party, we think it would not be an infraction of the rules usually regulating equity proceedings, to give these exceptions a privileged position on the docket.
“It is authorized by the example furnished in Spaulding v. Farwell, 62 Me., 319.” Stevens v. Shaw, 77 Me., 566, 1 A., 743.
“The rule laid down in Stevens v. Shaw, 77 Me., 566, 1 A., 743, is that it is irregular to hear exceptions in an equity case before final hearing, and that such hearings should not be allowed unless the question does not admit of delay until then.” Maine Benefit Ass’n v. Hamilton, 80 Me., 99, 13 A., 134.
“It might be questioned as to whether this bill of exceptions was not prematurely brought forward, as the exception was to an interlocutory order and perhaps should not have been entered until the completion of the case, when it might have become unnecessary to prosecute the exceptions. It. S., Chap. 77, Sections 22, 25 (R. S., 1930, Chap. 91, Sections 55, 58). But as the procedure under the act of 1893 (Law and Equity Act, Chap. 217, P. L., 1893), is somewhat anomalous, and as there has already been considerable delay in the case, we think it more in the interests of justice that the questions involved should now be determined, which course is not without precedent in this state, even if it were clear that the exceptions were prematurely brought forward.” Flint v. Comly, 95 Me., 251, 49 A., 1044.
It is held in Spaulding v. Farwell, supra, that exceptions to the ruling of the single Justice, sustaining exceptions in equity for impertinence, may be heard by the law court before the cause is carried to the stage of final disposition.
From the “peculiar character” of the issue, Stevens v. Shaw, supra, and because we agree with counsel for all parties here that decision now will be “more in the interests of justice,” Flint v. Comly, supra, we hold that we may now determine this issue.
The ruling of the learned Justice below takes from the consideration of the commissioners on damages, hereafter to be appointed, matters of greatest importance to complainants.
[19]*19They appear in the allegations of each complaint; 1st: “that there was inseparably attached to said land of the said complainant as an incorporeal hereditament and appurtenance inseparable from said land, including the area so overflowed, the right to the swift current and falls of the Kennebec River running by, over and along said land of said complainant; that said right to current, inseparable from said complainant’s land as aforesaid was very valuable and possessed the characteristics of potential but undeveloped horse power
2nd: “said potential and undeveloped horse power possessing the value of Fifteen Dollars at least per horse power
3rd: “that prior to the erection of said mills and dams by said Central Maine Power Company the complainant’s said land possessed as an inseparable part thereof an element of value consisting of hundreds of potential undeveloped horse power worth at least Fifteen Dollars per horse power for the future production of power, hydro-electric or otherwise,”
4th: “which said amount the said Central Maine Power Company has paid for said right to current appurtenant and attached to other land similarly situated on said Kennebec River as the said land of the said complainant
5th: “that the said complainant had a right so to use the current flow and falls of said Kennebec River for this and many other purposes, the said complainant’s land being greatly enhanced in value by reason thereof,”
6th: “and this valuable right has been wholly destroyed by the acts of the Central Maine Power Company heretofore described, whereby said Kennebec River theretofore running over, along, and by said land of the said complainant has now become a still lake or pond with the usual characteristics thereof; whereby the aforesaid swift and powerful current no longer exists and said great element of value in the complainant’s land has been taken from her,”
7th: “and appropriated by the said Central Maine Power Company and transferred from undeveloped horse power in the possession of the complainants to developed horse power in the possession of the said Central Maine Power Company, for the profit and benefit of the said Central Maine Power Company, its successors and assigns forever.”
[20]*20Instead of discussing seriatim the portions of the complaints excepted to, we may classify them and thus attain clarity and brevity in treatment.
The 1st, 5th, 6th and 7th allegations are pertinent if the owner of an unimproved upper mill site may recover damages for its flowing.
The 2nd and 3rd allegations are to the effect that the usufruct of complainants’ two or several mill sites adds great value to their owners; and the 4th that defendant has paid a certain amount per horse power for “right to current” on other lands now submerged by its dam.
If it be held that the allegations of the first group above are not pertinent, the ruling of the Justice below will be sustained.
A mill privilege, as the term is used here, presupposes a mill site, understood when the first Mill Act was passed as a place on a stream where a dam might be seated to furnish power for grist, saw, carding and fulling mills, and it may be mills of other sorts, “serviceable for the public good, and benefit of the town, or considerable neighborhood, in or near to which they may have been erected.” Mill seat, now mill site, and mill privilege have been household words of the people served by power dams on streams since the mud-sill of the first dam was seated in the territory now the state of Maine, for full three hundred years.
The terms are synonymous, used interchangeably to name a location on a stream where by means of a dam a head and fall may be created to operate water wheels.
The property right in a mill site has been recognized, and protected by legislation, as an incorporeal hereditament attached to the land of the riparian owner, and since 1841 a proprietor of an upper mill privilege, in this State, can not be deprived thereof if his privilege has been developed and not clearly abandoned, defeated or lost.
Is this incorporeal hereditament, when no dam or mill has been erected, a property right that may not be taken from the riparian owner by the filling and maintaining of a pond for operating a lower water mill, without compensation in damages?
Riparian owners have been deprived of certain rights in rivers and streams as American history has been written, as in New England where exclusive right to the taking of food fish has been [21]*21granted to towns, unquestioned to this day in certain Maine towns, or in mineral bearing states where the very water of the stream is appropriated by a first taker for the furtherance of mining, or where irrigation projects are of public benefit, and in all states where for a public use a water district includes a stream.
A riparian owner on a floatable stream has not a monopoly of the use of the stream or its banks. He must yield to the rights of others, at reasonable times to float timber down the stream, and allow necessary use of his banks by the owners of the timber and their servants, as travel up and down the banks is called for; he must allow the passage of boats.
In these and other ways the right of the owner in his mill privilege is limited. To erect a dam and mill thereon, when thereby no owner above or below is injured, is his right, but he must so operate his dam as to let the natural volume of the stream pass through, as well as the logs of the river driver.
Further, it was declared in Massachusetts, when our present state was a part of the former, that if a lower proprietor on a stream shall erect and maintain a dam for furnishing power to water wheels, and the pond created by such dam shall flow a mill site above, never improved, or improved and abandoned, the upper owner can not recover damages of the lower, although, so long as he maintains his dam he deprives the upper proprietor of any right to use his privilege to work a mill.
This follows as a result of the nature and extent of the right in the upper owner. His right is defeasible and if it is not asserted and availed of by him, he must submit to lower development, on a scale commensurate with the needs of the section benefited, and he may not have damages for the right of which he is deprived, a right which he shared with other riparian owners, and lost when such other made prior appropriation of his site. The lower “owners shall have free liberty to continue and improve such pond, for their best advantage, without molestation.” Colonial Act of 1714. The lower owners may erect a water mill, and if, “in so doing any land shall be flowed not belonging to the owner of such mill, it shall be lawful for the owner or occupant of such mill to continue the same head of water to his best advantage, in the manner and on the terms hereinafter mentioned.” Laws of Maine, 1821, Chap. 45.
[22]*22These, however, only assure to the lower owner his common law right to flow so far as necessary for reasonable use. The rule that appropriation of an unimproved or abandoned mill site is damnum absque injuria originated in Massachusetts and is known as the Massachusetts Rule: “for the owner of a mill site, who first occupies it by erecting a dam and mill, will have a right to water sufficient to work his wheels, if his privilege will afford it, notwithstanding he may, by his occupation, render useless the privilege of any one above or below him upon the same stream.” Hatch v. Dwight, 17 Mass., 288, 296,
It is important to note that this case was tried upon issues raised before the separation of Maine from Massachusetts.
“The -usefulness of water for mill purposes depends as well on its fall as its volume. But the fall depends on the grade of the land over which it runs. The descent may be rapid, in which case there may be fall enough for mill sites at short distances ; or the descent may be so gradual as only to admit of mills at considerable distances. In the latter case, the erection of a mill on one proprietor’s land may raise and set the water back to such a distance as to prevent the proprietor above from having sufficient fall to erect a mill on his land.
It seems to follow as a necessary consequence from these principles, that in such case, the proprietor who first erects his dam for such a purpose has a right to maintain it, as against the proprietors above and below; and to this extent, prior occupancy gives a prior title to such use.
It is a profitable, beneficial, and reasonable' use, and therefore one which he has a right to make. If it necessarily occupy so much of the fall as to prevent the proprietor above from placing a dam and mill on his land, it is damnum absque injuria.. .. Such appears to be the nature and extent of the prior and exclusive right, which one proprietor acquired by a prior reasonable appropriation of the use of the water in its fall; and it results, not from any original superior legal right, but from a legitimate exercise of his own common right, the effect of which is, de facto, to supersede and prevent a like use by other proprietors originally having the same common right.” Cary v. Daniels, 8 Met., 466, 477.
“This priority of first possession necessarily arises from the [23]*23nature of appropriation; where two or more men have an equal right to appropriate, and where the actual appropriation by one necessarily excludes all others, the first in time is the first in right.” Gould v. Boston Duck Co., 13 Gray, 442, 451.
“To the extent to which the descent or fall of water in a stream is taken up and occupied by the erection of dams for the purpose of carrying mills, the right of other owners on the same stream, who have not improved their sites for the creation of water power and the driving of mills, is abridged and taken away. In such cases prior occupancy gives priority of title. Although the right to the use of water is inherent in and appurtenant to land, it is nevertheless in a certain sense a right publici juris, and subject to the rule of law, which regards the erection of a dam for the purpose of creating mill power a profitable, beneficial and reasonable use of the stream, of which riparian proprietors on the same stream, who have not appropriated the same force and fall of the water on their own land, can not complain.
“It is damnum absque injuria. ... It is in view of the well established doctrine of the common law of this state, that the provisions of the mill act, so called, are to be construed and administered. By the first section of the B,. S., Chap. 116, which is substantially a reenactment of S. 1795, Chap. 74, Sec. 1, full power is given to any person to erect and maintain a water mill and dam to raise water upon any stream not navigable, according to the terms and conditions, and subject to the regulations, therein expressed.
“The only limitation on this power, so far as the rights of other owners of mill sites or water powers on the same stream may be effected by its exercise, is found in the second section of the same chapter, and in S. 1841, Chap. 18, which provides that no such dam shall be erected to the injury of any existing mill or of any mill site which shall have been previously used or occupied.
“But no provision is made to protect unoccupied or unimproved mill sites. Nor are they included specifically as a subject of damages in the foui-th section of the statutes, which provides for a compensation to parties ‘whose land is overflowed or otherwise injured’ by the erection and maintenance of a dam. The great purpose of these statutes, as declared in the preamble to S. 1795, Chap. 74, was to prevent the erection and support of mills from [24]*24being ‘discouraged by many doubts and disputes.’ They were not intended to confer any new right, or to create an additional claim for damages, which did not exist at common law.
“They only substituted, in the place of the common law remedies, a more simple, expeditious and comprehensive mode of ascertaining and assessing damages to persons whose lands were overflowed or otherwise injured by the erection and maintenance of dams on the same stream, for the purpose of creating a water power and carrying mills. It follows that, as a riparian proprietor could recover at common law no damages occasioned to an unimproved or unappropriated mill site by the erection of a dam and mill on the same stream below, he can not maintain a complaint under the mill act to recover similar damages.” Fuller v. Chicopee Mfg. Co., 16 Gray, 43.
And the Court says, in the same opinion; “This is the first case, so far as we know, in which an attempt has been made by a complaint under It. S., Chap. 116, or under the previous statutes enacted for the erection and regulation of mills, to claim damages for injury done to an unoccupied mill site. The fact that there is no precedent for such a claim is not conclusive, but it is strong evidence against the existence of any such right as the complainant sets up in the present case.”
Residents in the province of Maine, before separation from the mother state are conclusively held to have adopted the common law, as expressed by the courts of that state and Massachusetts Bay Colony.
The declaration of the common law in Hatch v. Dwight, supra, is as effective, if not repealed, in Maine, as if it were a declaration of our court, because the plaintiff in that suit acquired an interest in the privilege under litigation in 1807 ; took possession in 1817 ; and the writ was brought before Maine became a separate state.
The case was tried at the May term, 1820, and all conditions affecting its decision were existent before the separation.
It happened that an action between owners of mills and dams on a river dividing the states of Massachusetts and Rhode Island, some of the proprietors being residents of either state, was tried in the circuit court six years later, Tyler v. Wilkinson, 4 Mason, 397.
[25]*25Expressions of Story J., who delivered the opinion in that case have been used as authority contrary to the Massachusetts rule.
In that case the question at issue was the quantity of water which the proprietors of an upper mill privilege, improved by a dam, were allowed to discharge by means of a penstock from their dam to a trench which diverted the water from the natural channel of the river and returned it thereto at a point below the dam of proprietors of a lower privilege, also improved.
In the opinion, the learned jurist gives expression to some of the many principles of law then limiting the rights of riparian owners whose lands extend to the thread of the same stream.
Several of his observations were but dicta, and in the hundred years that have followed the decision in Hatch v. Dwight, supra, the Massachusetts court has not abandoned that decision.
Owners of riparian lands on any river, from its source to its mouth have rights in common. They may make reasonable use of its current over rips and falls not appropriated by the local owner, and over or through the obstructions caused by reasonable appropriation by the local owner.
So far as the reasoning has application to the cases at bar, Tyler v. Wilkinson is not in opposition to the Massachusetts rule. It is held there that as to the right of one of several riparian owners to the flow of a stream, “common by nature, there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy, where the fii’st occupant takes by force of his priority of occupancy. That supposes no ownership already existing, and no right to the use already acquired. But our law annexes to the riparian proprietors the right to the use in common, as an incident to the land; and whoever seeks to found an exclusive use, must establish a rightful appropriation in some manner known and admitted by the law.” Tyler v. Wilkinson, supra, at 401.
The action above was not brought under the Mill Act. It was not for damages for flowing lands of an upper proprietor.
In cases of the latter class, the Mill Act makes the appropriation by construction on the lower site, before any development is [26]*26begun on the upper site, a rightful appropriation, “known and admitted by the law.” There is no reason to suppose that Judge Story conceived that his findings on the facts before him, the right by grant or long established user to divert water from a lower proprietor, would be asserted as restricting the right given by the common law to flow the lands of an upper proprietor.
In Maine, litigation over rights in water powers began soon after the establishment of the state, and the principle was announced by our court in 1832 that the right of the owner of an undeveloped mill site is not complete. As against the owner of a lower site, the right to develop and use the upper is suspended, if the lower is first developed and flows the upper site, suspended so long as by the use of the lower site the other is submerged.
“A mill privilege, not yet occupied is valuable for the purposes to which it may be applied. It is property, which no one can have a legal right to impair or destroy, by diverting from it the natural flow of the stream, although it may be impaired by the exercise of certain lawful rights, originating in prior occupancy.” Blanchard v. Baker, 8 Me., 253, 268.
It can not be said that in preparation of the opinion above quoted the Court lost sight of the principle herein announced, for in the opinion reference is made to the fact that in jurisdictions other than Massachusetts and Maine another rule is announced.
Again in 1835 the same view is expressed. Butman v. Hussey, 12 Me., 407.
After the Maine mill act was amended so as to prohibit the erection of a dam, to the injury of any mill lawfully existing above or below it on the same stream, cases arose and the law was applied, though none are reported where damages are demanded for flowing an unimproved site.
In 1868 in a case for damages for flowing an improved upper mill site, these words were used: “The plaintiff’s dam was originally erected before the defendant’s. This is not controverted. In cases of this description qui prior est in tempore potior est in jure,” and the authority given is Cary v. Daniels and Gould v. Boston Duck Company, cases hereinbefore cited. Lincoln v. Chadbourne, 56 Me., 197.
From the date of that decision the principle has stood, unat-[27]*27tacked, and in reports and students’ texts Maine is considered as having adopted the Massachusetts rule.
“A mill owner can at any time appropriate for raising and maintaining a head of water for working his mill so much space in the river valley as has not already been appropriated by some other mill owner for his own mill.” Fibre Co. v. Electric Co., 95 Me., 318, 49 A., 1095.
As against all the world except riparian proprietors, one who owns a mill site may seek damages if deprived of his right.
But because of the right common to riparian proprietors, publici juris, to further the public good the doctrine of appropriation of a mill privilege grew up as naturally as the doctrine of appropriation of the water of a stream for mining grew and established itself over this country from the mountains of the west to the plains. It was founded on necessity, based on the conditions of the watershed of Massachusetts and Maine, at a time when a twelve feet head of water was a monstrous power, and what would now be tiny mills were necessities of domestic and industrial life.
In the present era of industrial development, in the few states that have not coal, but have streams in volume and character like ours, there is ever more insistent demand for the development of water power sites ; not in separate independent units, however, but in aggregate of head, as the topographical features of the watershed dictate. So that what may have never suggested profitable development as a power site, until a great enterprise was begun, now demands the changing of the river from a stream of strong, swift current to a pond, with the consequence that a recognizable but unprofitable mill site may be flowed by a lower riparian owner, without damages for the appropriation or change.
It is conceivable that on any half mile of the river along Carra-tunk a dam might be erected, though at such expense as to be an unprofitable venture, if its pond were filled, but none of any economic value if all were built upon.
Construction at the strategic point flows out many possible sites, and the law as understood in this state favors the erection of the great dam, for the good of the greater number.
Flowing the lands of another for the purpose of working mills, is a right recognized in this jurisdiction, not as an exercise of the [28]*28eminent domain, for our mills are not of public use, as the term is understood in law, and our constitution does'not authorize taking for the benefit of the public as does that of Massachusetts. Brown v. Gerald, 100 Me., 351, 370, 61 A., 785; Murdock v. Stickney, 8 Cush., 113; Bates v. Weymouth Iron Co., 8 Cush., 548, 553; Lowell v. Boston, 11 Mass., 454, 464; Turner v. Nye, 154 Mass., 579, 14 L. R. A., 487, 28 N. E., 1048.
Flowing of riparian lands is an adjustment and regulation to assure development of reasonable use of such lands among riparian owners. See cases cited in Brown v. De Normandie, 123 Me., at 541, 124 A., 697.
In that adjustment we do not recognize, in theory or in fact, that the owner of land flowed by a pond for a water mill is a part owner in the developed lower privilege. He still owns his flowed land, and may still use it on which to sink a pier or in which to drive piling, Jordan v. Woodward, 40 Me., 317, 324, or submit it to any reasonable use not detrimental to the maintenance of the pond.
But he does not participate in the ownership of the dam and mill below. He is not entitled to share in the profits of the lower development simply from the fact that his unimproved mill site, or the rocky course of the bed of the river on his land, does its.part in upholding the impounded water.
Items of alleged damage for changing the current to still pond water are not to be included in the evidence for consideration by the commissioners; their statement is not pertinent to process under the Mill Act.
The allegations of the first group were properly expunged, and the others fall with this group. °
„ 7 , Exceptions overruled.