This argument was heard at the last May term, and the opinion of the Court was now delivered by
Weston J.
The first question presented is, In what proportions the original plaintiffs (and wherever plaintiffs or defendants are adverted to in this opinion, those who were originally such are intended,) are seised and possessed of the mill and privilege, for an injury to which this action is brought. They claim thirteen sixteenths; while the defendants insist, that they should be restricted to three eighths, and one thirty second part, derived by inheritance from Samuel Baker, the elder. If his sons, Nathaniel, Amasa and Samuel the younger, were originally seised each of a quarter in common and undivided, the plaintiffs have established their title to the proportion they claim. If the father died seised of the whole, they are to be restricted to the proportion-, accorded to them by the defendants.
It does not appear that the father ever claimed to be sole seised of the land and privilege, upon which the mill was built. His title commenced at the same period with that of his sons, and had its origin in possession and occupancy. Who were the owners in fee at that time is not stated; but it does not appear that the first occupants, or those who hold under them, have ever been disturbed by any paramount claim ; and their title has now become indefeasable by lapse of time. It is stated that the father had before used the adjoining land for a pasture, but without title. He occupied and fenced the land bordering upon the river, and no one in his life time, except himself, claimed any part of it, saving the mill and privileges appurtenant, which were claimed, occupied and possessed in common by himself and his three sons. This privilege then, derelict by the true owner, was taken up by the father and his three sons, each claiming and enjoying one fourth part of the same, and of the mill thereon erected, in common. And it does not appear that the right of the three sons, or of those claiming under them, to their [266]*266three fourths, has ever been called in question, Until the present action. And we are satisfied, that the title of the three sons is as well sustained as that of the father.. His exclusive occupancy to the river might by construction of law have extended his right to the thread of the river, had it not been that this privilege was always excluded from his several and sole claim, and from the first possessed and occupied in common. The first error therefore is not well assigned.
The right to the use of a stream of water, is incident or appurtenant to the land, through which it passes. It is an ancient and well established principle, that it cannot lawfully be diverted, unless it is returned again to its accustomed channel, before it passes the land of a proprietor below. Running water is not susceptible of an appropriation, which will justify the diversion or unreasonable detention of it. The proprietor of the water course has a right to avail himself of its momentum as a power, which may be turned to beneficial purposes. And he may make a reasonable use of the water itself, for domestic purposes, for watering cattle, or even for irrigation ; provided it is not unreasonably detained, or essentially diminished. For although by the case of Weston v. Alden, 7 Mass. 136, the right of irrigation might seem to be general and unlimited; yet subsequent eases have restrained it consistently with the enjoyment of the common bounty of nature, by other proprietors, through whose land a stream had been accustomed to flow. Colburn v. Richards, 13 Mass. 420; Cook v. Hull, 3 Pick. 269; Anthony v. Lapham, 5 Pick. 175. And the qualification of the right by these latter decisions, is in accordance with the' common law.
It is insisted that the defendants, by deepening the channel running from the main stream, have made- a reasonable use of the water, and that it falls within the principle of the right- of irrigation1, and that, therefore-, although the plaintiffs may suffer thereby, it is damnum absque injuria. It must however be remembered that the right of irrigation can be exercised only, by returning what is not wanted for this purpose to its accustomed channel. But the defendants diverted' the water, used it, and did not return it. They •contend that the diversion is justified, because the channel, through [267]*267which it was made, was an ancient one. Whether the channel had ever before been made or deepened by artificial means, does not appear. But however that might be, the defendants had a right to the benefit of it in its former state; but this would not justify any new or further diversion. The case of Bealey v. Shaw & al. 6 East. 208, states the law in a very satisfactory manner upon this point. It results that the second, third and fourth errors, predicated upon the assumption of a right to deepen the channel, are not well assigned.
The fifth error assigned is, that the Judge decided that the plaintifS had a right to extend their dam to the eastern shore. This is deduced from his instruction to the jury that the plaintiffs had all the right in the stream, which they had set forth. There may be reason to believe from the evidence reported, that those under whom the plaintiffs claim, originally acknowledged the right of Dr. Jones to the eastern shore, and extended their dam to that side by his permission. And if the cause turned upon this point, that fact should have been settled by the jury. The defendants, who have succeeded to tho title of Jones, prior to the erection of the existing dam in 1828, forbade its extension to their shore, notwithstanding which, however, it was so extended. An adverse seisin and possession of tho privilege on that side then commenced, if not before. In Jewell v. Gardiner, cited in the argument, the plaintiff was from the beginning a trespasser; and it was held that he derived no right from an appropriation of the stream, which was itself a wrong upon the defendant.. But in the case before us, assuming that the privilege on the eastern * side was occupied in subordination to the title of Dr. Jones, the appropriation of tho stream was lawful, and it was continued long enough to give to the owners of the western shore a right, on their side, to the head of water they had raised, which Jones, and those holding under him, could not lawfully impair, by operations above or below. The assent and permission given by Dr. Jones, presents a case differing materially from that of Jewell v. Gardiner. It might admit of great question, how far it was competent for Jones, having consented that the owners on the western shore might extend their dam to the eastern side, until such time as he should want the priv[268]*268ilege there, and they being thereupon led to make expensive erections, could revoke the license he had granted, to their prejudice, at least until he. did want the privilege on that side. And if he might do so, no relocation is proved or pretended, until twenty eight years after the license was given. During all that time, the owners on the western shore, had lawfully raised and appropriated a head of water in their own right, on their side. Now this right they have never abandoned., but up to the commencement of this action, continued to enjoy.
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This argument was heard at the last May term, and the opinion of the Court was now delivered by
Weston J.
The first question presented is, In what proportions the original plaintiffs (and wherever plaintiffs or defendants are adverted to in this opinion, those who were originally such are intended,) are seised and possessed of the mill and privilege, for an injury to which this action is brought. They claim thirteen sixteenths; while the defendants insist, that they should be restricted to three eighths, and one thirty second part, derived by inheritance from Samuel Baker, the elder. If his sons, Nathaniel, Amasa and Samuel the younger, were originally seised each of a quarter in common and undivided, the plaintiffs have established their title to the proportion they claim. If the father died seised of the whole, they are to be restricted to the proportion-, accorded to them by the defendants.
It does not appear that the father ever claimed to be sole seised of the land and privilege, upon which the mill was built. His title commenced at the same period with that of his sons, and had its origin in possession and occupancy. Who were the owners in fee at that time is not stated; but it does not appear that the first occupants, or those who hold under them, have ever been disturbed by any paramount claim ; and their title has now become indefeasable by lapse of time. It is stated that the father had before used the adjoining land for a pasture, but without title. He occupied and fenced the land bordering upon the river, and no one in his life time, except himself, claimed any part of it, saving the mill and privileges appurtenant, which were claimed, occupied and possessed in common by himself and his three sons. This privilege then, derelict by the true owner, was taken up by the father and his three sons, each claiming and enjoying one fourth part of the same, and of the mill thereon erected, in common. And it does not appear that the right of the three sons, or of those claiming under them, to their [266]*266three fourths, has ever been called in question, Until the present action. And we are satisfied, that the title of the three sons is as well sustained as that of the father.. His exclusive occupancy to the river might by construction of law have extended his right to the thread of the river, had it not been that this privilege was always excluded from his several and sole claim, and from the first possessed and occupied in common. The first error therefore is not well assigned.
The right to the use of a stream of water, is incident or appurtenant to the land, through which it passes. It is an ancient and well established principle, that it cannot lawfully be diverted, unless it is returned again to its accustomed channel, before it passes the land of a proprietor below. Running water is not susceptible of an appropriation, which will justify the diversion or unreasonable detention of it. The proprietor of the water course has a right to avail himself of its momentum as a power, which may be turned to beneficial purposes. And he may make a reasonable use of the water itself, for domestic purposes, for watering cattle, or even for irrigation ; provided it is not unreasonably detained, or essentially diminished. For although by the case of Weston v. Alden, 7 Mass. 136, the right of irrigation might seem to be general and unlimited; yet subsequent eases have restrained it consistently with the enjoyment of the common bounty of nature, by other proprietors, through whose land a stream had been accustomed to flow. Colburn v. Richards, 13 Mass. 420; Cook v. Hull, 3 Pick. 269; Anthony v. Lapham, 5 Pick. 175. And the qualification of the right by these latter decisions, is in accordance with the' common law.
It is insisted that the defendants, by deepening the channel running from the main stream, have made- a reasonable use of the water, and that it falls within the principle of the right- of irrigation1, and that, therefore-, although the plaintiffs may suffer thereby, it is damnum absque injuria. It must however be remembered that the right of irrigation can be exercised only, by returning what is not wanted for this purpose to its accustomed channel. But the defendants diverted' the water, used it, and did not return it. They •contend that the diversion is justified, because the channel, through [267]*267which it was made, was an ancient one. Whether the channel had ever before been made or deepened by artificial means, does not appear. But however that might be, the defendants had a right to the benefit of it in its former state; but this would not justify any new or further diversion. The case of Bealey v. Shaw & al. 6 East. 208, states the law in a very satisfactory manner upon this point. It results that the second, third and fourth errors, predicated upon the assumption of a right to deepen the channel, are not well assigned.
The fifth error assigned is, that the Judge decided that the plaintifS had a right to extend their dam to the eastern shore. This is deduced from his instruction to the jury that the plaintiffs had all the right in the stream, which they had set forth. There may be reason to believe from the evidence reported, that those under whom the plaintiffs claim, originally acknowledged the right of Dr. Jones to the eastern shore, and extended their dam to that side by his permission. And if the cause turned upon this point, that fact should have been settled by the jury. The defendants, who have succeeded to tho title of Jones, prior to the erection of the existing dam in 1828, forbade its extension to their shore, notwithstanding which, however, it was so extended. An adverse seisin and possession of tho privilege on that side then commenced, if not before. In Jewell v. Gardiner, cited in the argument, the plaintiff was from the beginning a trespasser; and it was held that he derived no right from an appropriation of the stream, which was itself a wrong upon the defendant.. But in the case before us, assuming that the privilege on the eastern * side was occupied in subordination to the title of Dr. Jones, the appropriation of tho stream was lawful, and it was continued long enough to give to the owners of the western shore a right, on their side, to the head of water they had raised, which Jones, and those holding under him, could not lawfully impair, by operations above or below. The assent and permission given by Dr. Jones, presents a case differing materially from that of Jewell v. Gardiner. It might admit of great question, how far it was competent for Jones, having consented that the owners on the western shore might extend their dam to the eastern side, until such time as he should want the priv[268]*268ilege there, and they being thereupon led to make expensive erections, could revoke the license he had granted, to their prejudice, at least until he. did want the privilege on that side. And if he might do so, no relocation is proved or pretended, until twenty eight years after the license was given. During all that time, the owners on the western shore, had lawfully raised and appropriated a head of water in their own right, on their side. Now this right they have never abandoned., but up to the commencement of this action, continued to enjoy. And if, in the exercise of their right, at and since the erection of the new dam, they have trespassed upon the defendants, they may be answerable to them in an action at law therefor, or it may be that the defendants may lawfully enter, and prostrate the dam on the eastern side, but the right of the plaintiffs to the head of water they had raised on the western side, would remain unimpaired. When a right of this kind becomes once lawfully vested, it may be asserted and maintained, until abandoned. Hatch v. Dwight, 17 Mass. 289. The privilege on the western side, was capable of heing enjoyed by a diagonal or wing dam.
But independent of their actual seisin and occupancy of the dam across the river, the plaintiffs have made out a sufficient gravamen to sustain their verdict, which was for nominal damages. They are the undoubted owners of the proportion of the mill they claim, and of the stream, on the western side to. the thread of the river; and the water has been diverted by the defendants, to the prejudice of rtheir right. A mill privilege not yet occupied, is valuable for the purposes to which it may be applied. It is a property, which no ope can have a legal right to impair or destroy, by diverting from it the natural flow of the stream, upon which its value depends; although it may be impaired by the exercise of certain lawful rights, originating in prior occupancy. If an unlawful diversion is suffered for twenty years, it ripens into a right, which cannot be controverted- If the party injured cannot be allowed in the mean time to vindicate his right by action, it would depend upon the will, of others, whether he should be permitted or not, to enjoy that species of property. The case of Hobson v. Todd, 4 T. R. 71, presented a similar question in principle, in which the court held, upon a review [269]*269of the authorities, that one commoner might maintain an action against another, for an injury to his right, without proof of actual damage. Tf tho plaintiffs have not proved their whole declaration, they have proved the tortious act they complain of, and a consequent damage to their right. They have shown their title to the mills, and to the privilege to the thread of the river. A plaintiff is entitled to judgment, if he proves only a part of his declaration, if the part proved presents a cause of action. If therefore this judgment were reversed, and a new trial granted, the plaintiffs would be entitled to a verdict and judgment upon the same evidence.
The sixth error assigned is founded upon a deduction from tho instructions of the Judge, that the plaintiffs had a right to raise their new dam and to maintain it, eight inches higher than their old one was. In Beissell v. Sholl, 4 Dall. 211, the court say, “that every man in this country has an unquestionable right to erect a mill upon his own land; and to use the water passing through his land as he pleases ; subject only to this limitation, that his mill must not be so constructed and employed, as to injure his neighbor’s mill; and that after using the water, he returns tho stream to its ancient channel.” The doctrine laid down by Blackstone is, that “ if a stream be unoccupied,- I may erect a mill thereon, and detain tho water; yet not so as to injure my neighbor’s prior mill, or his meadow.” And in Hatch v. Dwight, before cited, Parker C. J. says, “ the owner of a mill site, who first occupied 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.” Now as the defendants did not erect their mill, until the plaintiffs’ dam was raised, they had, by these authorities, the same right to raise it, as they had originally to build it to its first elevation. The right however, arising from mere prior occupancy, to this extent, has not been held in some cases as exclusive, unless continued for twenty years. Platt v. Johnson, 16 Johns. 213; Tyler v. Wilkinson, 4 Mason, 397. And we do not deem it necessary in the present case to decide, that by prior occupancy, the plaintiffs had acquired an exclusive right to the entire head of water, raised by [270]*270their new dam. But if they had no lawful authority in 1828 to ex-, tend their dam to the eastern shore, or to give it at that time an additional elevation, and derive therefore no rights from it, the cause of action before stated, would remain unaffected. -Within the limitation stated in Beissell v. Sholl, the defendants had a right to change the character of their mills upon their privilege as they pleased, and to take them, or either of them, down and substitute others. 3 Dane 5, and the cases there cited. It does not appear that the plaintiffs’ double grist mill is a use of the privilege, beyond that of the mills, which were conveyed to them. And this is a sufficient an-, swer to the eighth error.
The seventh error assumes that the defendants, as the owners of' the eastern shore, had a right to half the water, and a right to divert it to that extent. It has been seen, that if they had been the owners of both sides, they had no right to divert the water, without again returning it to its original channel. Besides, it was impossible in the nature of things that they could.take it from their side only. An equal portion from the plaintiffs’ side, must have been mingled with all that was diverted.
The defendants lastly object to the form of the action. The plaintiffs have sustained an injury ; and are therefore entitled to a legal remedy. No form more apt or appropriate has been suggested. It is that which has been used and approved, for injuries arising from the diversion of a water course. The objection ¡¿’technical; founded upon the relation in which the plaintiffs stand, as tenants in common with the defendants. Trespass does not in general lie by one tenant in common against another; because each has an equal right to the possession.' But if one destroy that which is held in common, it does. And,«upon the same principle, case would doubtless lie, where the destruction was not immediate, but consequent upon the act of one of the tenants in common. If all the water had been diverted, the plaintiffs’ privilege would have been destroyed. If partially, it would seem to have been a destruction pro tanto. If two several owners of houses have a river in common between them, if one of them corrupts the river, the other shall have an action on the [271]*271case. Co. Lit. 200, b; Hobson v. Todd, before cited, was case by one commoner against another, for surcharging the common, and no objection was taken to the form of the action. And we are of opinion, that this action may be supported upon authority, and the fair analogies of the law.
Judgment affirmed„