Morton, J.
In considering this case we must assume as established the facts found by the auditors. In order to intelligently discuss the questions of law raised, it seems necessary to make a statement of the principal facts.
[496]*496Prior to 1845, the Clinton Company, predecessors in title to the Bigelow Carpet Company, owned and occupied for manufacturing purposes a mill-site and dam upon South Meadow Brook, in Clinton, at the easterly end of a pond, flowed by the dam, known as Clinton Pond. Northerly of Clinton Pond was another pond called Mossy Pond, which was a self-contained pond without inlet or outlet, and not connected with the waters of said brook nor in any way affected by the flowage of the Clinton Company. In 1845 the Clinton Company formed its plans, and late in that year or early in 1846 began operations to increase its power and capacity for storage of water by raising its dam to such height as to raise the water of Clinton Pond about thirteen or fourteen feet above its- then level. For this purpose the company acquired by sundry deeds from time to time the ownership of, or rights of flowage over, the various parcels of land which would be covered by the water so raised, and established a water level or flowage line, with reference to which its dam, waste-way and other works were designed and constructed. The level or line so fixed was at the height of the top of a certain beam in the waste-way which was then constructed, beneath which were flash-boards for retaining or drawing down the waters of the pond to this level, and it was not intended or designed in the construction of the works of the Clinton Company that the water should, even in case of freshets, exceed this line by more than a-few inches.
The construction of the dam at the height thus fixed would cause the waters of Clinton Pond to flow back into Mossy Pond, and, as the level of the flowage line established as above stated was about seven or eight feet above the level of the natural bank of Mossy Pond at its northeasterly end, would cause the water so raised to flow over that bank and down a steep descent into and through a valley below, in which the tannery of the plaintiffs was situated.
The Clinton- Company, for the purpose of retaining the water at this point, purchased in April 1846 the land then forming the natural-bank of Mossy Pond, and built upon it an embankment "or -iktaining-daln^heremafter called Mossy Pond dam, the breaking' of ' which' caused the.-disaster which is the subject of this suit.
[497]*497The new dam and waste-way of the Clinton Company were completed in the fall of 1847, and Mossy Pond dam was built in March 1847, at about the same time as the main dam; and the waters of Clinton Pond were so far raised in the spring of 1847 that boats could pass from it into Mossy Pond, but it was not flowed to its full height until 1848.
At about the same time when the Clinton Company was engaged in building its new dam, the Worcester and Nashua Railroad Company was engaged in laying out and constructing its railroad. Its act of incorporation was passed March 5, 1845; its route in Clinton was established by vote of its directors on November 7, 1846, and its location was filed March 4, 1848. The railroad, as located and constructed, crossed South Meadow Brook by an embankment of from twenty to thirty feet in height at a point just above where that brook entered Clinton Pond as it was prior to 1846, and thence ran easterly along the northerly side of that pond. This embankment was partly built in 1847, and completed in the spring of 1848. In building it, the railroad company constructed two culverts, designed for the passage of the water from the north to the south side of the railroad, and through which alone the waters of South Meadow Brook could pass, said embankment being otherwise of solid earth filling. These culverts were located at a point more than seventy-five feet westward from the point where the natural stream of the brook crossed the line of the railroad, and the bottom of the culverts was from two to three feet above the surface of the brook in its ordinary stage, and the natural earth at the entrance of the culverts, over which the water must flow to enter them, was two or three feet above the bottom of the culverts. The natural bed of the brook where it crossed the line of the railroad was filled up so that the water of the stream was not only diverted from its natural course, but raised above its natural level about five feet and accumulated to that height against the embankment of the railroad without any reference to or aid from the dam of the Clinton Company below. And this accumulation in time of high water would cause the water to flow over the northeast bank • of Mossy Pond in its natural condition. The flowing of Clinton Pond by the new dam to the height of the established level of flowage raised the water to [498]*498the height of six or seven feet above the top of these culverts. These culverts were designed to act as submerged culverts, and .were Constructed in view of, and as adapted to, the plan of the Clinton Company to raise the pond by the new dam as it was in fact built; and, in regard to their location and construction, the constructing engineer of the railroad company consulted with the agent and hydraulic engineer engaged in constructing the dam of the Clinton Company, and they were determined upon such consultation, and the Clinton Company and the railroad company respectively built their works, railroad and culverts with the full understanding of the plans and purposes of each other, as those plans and purposes were actually carried out. The area of the water-shed furnishing water to the ponds on the north side of the railroad was about five times that of the water-shed furnishing water to the pond on the south side.
The Bigelow Carpet Company purchased the property of the Clinton Company on November 13, 1863, and has since used, as its reservoir and source of water power, the ponds on both sides of the railroad. On March 26, 1876, owing to a storm the two preceding days, there was a great accumulation of water in the ponds, the water in the pond north of the railroad standing more than two feet higher than the water in the pond south of the railroad. It finally rose so as to flow over the top of Mossy Pond dam, broke through and carried away the dam, and the. waters were precipitated upon the plaintiffs’ tannery situated in the valley below. For the injury thus done them- the plaintiffs brought this suit against the railroad company and the Bigelow Carpet Company.
The auditors have found that the storm, and all the operations of nature attending it and contributing to raise the waters of Mossy Pond and to produce the disaster, were not extraordinary, but were such as might at any time be reasonably expected to occur, and which might and ought to be anticipated and provided for by reasonable precaution. They have also found that the defendants, and each of them,, were negligent in the construction, maintenance and management of their respective works, and that the negligence of each contributed to the disaster and to the injury-resulting therefrom to the plaintiffs.
[499]
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Morton, J.
In considering this case we must assume as established the facts found by the auditors. In order to intelligently discuss the questions of law raised, it seems necessary to make a statement of the principal facts.
[496]*496Prior to 1845, the Clinton Company, predecessors in title to the Bigelow Carpet Company, owned and occupied for manufacturing purposes a mill-site and dam upon South Meadow Brook, in Clinton, at the easterly end of a pond, flowed by the dam, known as Clinton Pond. Northerly of Clinton Pond was another pond called Mossy Pond, which was a self-contained pond without inlet or outlet, and not connected with the waters of said brook nor in any way affected by the flowage of the Clinton Company. In 1845 the Clinton Company formed its plans, and late in that year or early in 1846 began operations to increase its power and capacity for storage of water by raising its dam to such height as to raise the water of Clinton Pond about thirteen or fourteen feet above its- then level. For this purpose the company acquired by sundry deeds from time to time the ownership of, or rights of flowage over, the various parcels of land which would be covered by the water so raised, and established a water level or flowage line, with reference to which its dam, waste-way and other works were designed and constructed. The level or line so fixed was at the height of the top of a certain beam in the waste-way which was then constructed, beneath which were flash-boards for retaining or drawing down the waters of the pond to this level, and it was not intended or designed in the construction of the works of the Clinton Company that the water should, even in case of freshets, exceed this line by more than a-few inches.
The construction of the dam at the height thus fixed would cause the waters of Clinton Pond to flow back into Mossy Pond, and, as the level of the flowage line established as above stated was about seven or eight feet above the level of the natural bank of Mossy Pond at its northeasterly end, would cause the water so raised to flow over that bank and down a steep descent into and through a valley below, in which the tannery of the plaintiffs was situated.
The Clinton- Company, for the purpose of retaining the water at this point, purchased in April 1846 the land then forming the natural-bank of Mossy Pond, and built upon it an embankment "or -iktaining-daln^heremafter called Mossy Pond dam, the breaking' of ' which' caused the.-disaster which is the subject of this suit.
[497]*497The new dam and waste-way of the Clinton Company were completed in the fall of 1847, and Mossy Pond dam was built in March 1847, at about the same time as the main dam; and the waters of Clinton Pond were so far raised in the spring of 1847 that boats could pass from it into Mossy Pond, but it was not flowed to its full height until 1848.
At about the same time when the Clinton Company was engaged in building its new dam, the Worcester and Nashua Railroad Company was engaged in laying out and constructing its railroad. Its act of incorporation was passed March 5, 1845; its route in Clinton was established by vote of its directors on November 7, 1846, and its location was filed March 4, 1848. The railroad, as located and constructed, crossed South Meadow Brook by an embankment of from twenty to thirty feet in height at a point just above where that brook entered Clinton Pond as it was prior to 1846, and thence ran easterly along the northerly side of that pond. This embankment was partly built in 1847, and completed in the spring of 1848. In building it, the railroad company constructed two culverts, designed for the passage of the water from the north to the south side of the railroad, and through which alone the waters of South Meadow Brook could pass, said embankment being otherwise of solid earth filling. These culverts were located at a point more than seventy-five feet westward from the point where the natural stream of the brook crossed the line of the railroad, and the bottom of the culverts was from two to three feet above the surface of the brook in its ordinary stage, and the natural earth at the entrance of the culverts, over which the water must flow to enter them, was two or three feet above the bottom of the culverts. The natural bed of the brook where it crossed the line of the railroad was filled up so that the water of the stream was not only diverted from its natural course, but raised above its natural level about five feet and accumulated to that height against the embankment of the railroad without any reference to or aid from the dam of the Clinton Company below. And this accumulation in time of high water would cause the water to flow over the northeast bank • of Mossy Pond in its natural condition. The flowing of Clinton Pond by the new dam to the height of the established level of flowage raised the water to [498]*498the height of six or seven feet above the top of these culverts. These culverts were designed to act as submerged culverts, and .were Constructed in view of, and as adapted to, the plan of the Clinton Company to raise the pond by the new dam as it was in fact built; and, in regard to their location and construction, the constructing engineer of the railroad company consulted with the agent and hydraulic engineer engaged in constructing the dam of the Clinton Company, and they were determined upon such consultation, and the Clinton Company and the railroad company respectively built their works, railroad and culverts with the full understanding of the plans and purposes of each other, as those plans and purposes were actually carried out. The area of the water-shed furnishing water to the ponds on the north side of the railroad was about five times that of the water-shed furnishing water to the pond on the south side.
The Bigelow Carpet Company purchased the property of the Clinton Company on November 13, 1863, and has since used, as its reservoir and source of water power, the ponds on both sides of the railroad. On March 26, 1876, owing to a storm the two preceding days, there was a great accumulation of water in the ponds, the water in the pond north of the railroad standing more than two feet higher than the water in the pond south of the railroad. It finally rose so as to flow over the top of Mossy Pond dam, broke through and carried away the dam, and the. waters were precipitated upon the plaintiffs’ tannery situated in the valley below. For the injury thus done them- the plaintiffs brought this suit against the railroad company and the Bigelow Carpet Company.
The auditors have found that the storm, and all the operations of nature attending it and contributing to raise the waters of Mossy Pond and to produce the disaster, were not extraordinary, but were such as might at any time be reasonably expected to occur, and which might and ought to be anticipated and provided for by reasonable precaution. They have also found that the defendants, and each of them,, were negligent in the construction, maintenance and management of their respective works, and that the negligence of each contributed to the disaster and to the injury-resulting therefrom to the plaintiffs.
[499]*499The negligence attributed to the railroad company is, that it improperly constructed the culverts, so that they were likely to become filled with earth and sand, and no proper precaution was taken to prevent such filling; that they did become choked and partially filled so that they would not discharge the waters of Mossy Pond with sufficient rapidity to keep the waters of the two ponds upon a level; and that the company did not use due care to examine into their condition and to clear them out when obstructed.
The negligence attributed to the Bigelow Carpet Company is, that the Mossy Pond dam was improperly constructed and maintained to sustain water at any level higher than three or four feet below its top; that the company carelessly omitted to watch and observe the difference of the height of the water in the two ponds and the obstructed condition of the culverts; that it allowed the waters at its dam, on March 26, to rise to an elevation of about one foot above its established flow-line and thereby to diminish the flow through the culverts and to sustain the water in Mossy Pond at the high level which it attained; and that it failed to remove its flash-boards at the dam or to open its gates, as reasonable prudence required in order to prevent the accumulation of water which was reasonably to be expected.
We are of opinion that the findings of the auditors were based upon correct principles of law.
When a highway, railroad, mill-dam or other public work is authorized by the Legislature, such work is legal and all damages necessarily incident to such work must be recovered in the manner pointed out by the law authorizing it, and no action, as for a tort, will lie to recover such damages.- But this rule presupposes that the work will be executed in a reasonably proper and skilful manner and with a just regard to the rights of others. And the distinction is well established that, if the corporation or person owning and constructing the work does not use due care in constructing and maintaining it, it is liable to an action of tort by any person injured by such negligence. Rowe v. Granite Bridge, 21 Pick. 344. Estabrooks v. Peterborough & Shirley Railroad, 12 Cush. 224. Perry v. Worcester, 6 Gray, 544. Sprague v. Worcester, 13 Gray, 193.
[500]*500When the Nashua and Worcester Railroad Company located and constructed its railroad through Clinton, it found that the Clinton Company had made its plans and commenced the construction of its works by which the waters of Clinton Pond were to be raised so that Clinton Pond and Mossy Pond would be united and form one large pond into which South Meadow Brook flowed, having no outlet except at the dam of the Clinton Company. It located and built its railroad across this pond. As the water-shed on the north side was so much greater than the watershed on the south side of the railroad, and as South Meadow Brook ran into the pond on the north side, the inevitable effect of a solid embankment would be to flow back the accumulating water and injure owners of property on the northeast side of Mossy Pond. This could be prevented, without unreasonable expense, by constructing suitable openings or culverts through the embankment. Common prudence and a just regard to the rights of others required that such openings or culverts should be provided so as to keep the water on each side of the railroad at the same level.
The railroad company recognized its duty to make such openings, and, acting in concert with the Clinton Company and with a knowledge of its plans and purposes, adopted the plan of two submerged culverts, as above described. Undoubtedly other plans were open to its choice, but the plaintiffs had no voice in the matter ; all that they could require was that the railroad should adopt and carry out some plan which would protect them from injury.
Having chosen to adopt this plan, it was the duty of the rail-' road company to use reasonable care in the construction and maintenance of the culverts, so that they would answer the purpose for which they were intended. The auditors have found that the plan was a good one, but that the culverts were improperly constructed, and that the railroad company did not use proper precautions to keep them clear and free from obstructions. They properly found that this was negligence which rendered the railroad company liable to the plaintiffs for any injury thereby caused to them.
The railroad company now contends that it was only required to build an opening or culvert sufficiently large to discharge [501]*501the waters of South Meadow Brook, and that, as the opening in the culvert on the day of the disaster was sufficient for this purpose, no negligence can be attributed to it. We cannot assent to this proposition. When it came to build its road it was its duty to take into consideration the existing state of the pond and of the Clinton Company’s works and plans, and of the surrounding land, and to adopt all reasonable precautions to prevent injury to others. Such precaution would include a proper provision for the water which would accumulate in the northerly part of the pond on account of its greater water-shed as well as by the natural flow of the brook, after the plans of the Clinton Company in reference to which the culverts were made were carried out.
The railroad company contended before the auditors that “ the measure of its obligation to the plaintiffs in regard to said culverts could not exceed its obligation to its co-defendant, the Bigelow Carpet Company, and that that obligation was fully performed if its culverts were capable of discharging and actually discharged, during the freshet of March 26, all the water which the Bigelow Carpet Company had the capacity to discharge at its dam by the gates and waste-way ; and that if the discharge of more water than was actually discharged through the culverts, in sufficient quantity to relieve the pressure upon Mossy Pond dam and prevent its destruction, would have occasioned the overflow of water over the bank of Clinton Pond at its lowest point into the bed of the railroad itself and thence into the premises of the Bigelow Carpet Company, the fact that the culverts discharged all the water which the Bigelow Carpet Company’s gates and waste-way did or could discharge would show a full performance of the obligation on the part of the Worcester and Nashua Railroad Company, and exempt it from liability to the plaintiffs.”
This claim is answered by the finding by the auditors of the facts, that if the culverts had been maintained and kept open during the freshet to their full capacity, as they were originally designed and constructed with the concurrence and approval of both defendants or their predecessors in title, and for the use of both, the Bigelow Carpet Company would have been, bound to provide for the discharge of all the water passing through [502]*502them, and might and it is to be presumed would have done so by opening its dam or otherwise.
From the relations between the defendants it is clear that the Bigelow Carpet Company would have been obliged to provide for the discharge at its dam of all the water passing through the culverts at their full capacity. If it failed to do so, it would be guilty of negligence towards the railroad company. Certainly it is no defence to the plaintiffs’ claim for an injury caused by the undue accumulation of water on the north of the railroad, that, if the railroad company had performed its duty to the plaintiffs and let the water through the culverts, the Bigelow Carpet Company might have neglected to discharge the water over its dam and thus flowed it back upon the railroad. But further than this, the plaintiffs had nothing to do with the disposal of the water after it passed the culverts, and we are of opinion that the general ruling of the auditors was correct, “ that in any event the fact that the passing through the culverts of all the water accumulated on the north side of the railroad would have worked injury to the premises of both or either of the defendants, constitutes no justification of the Worcester and Nashua Railroad Company in negligently accumulating such water, and is no defence to this action.”
The same principles of law are applicable to the question of the liability of the other defendant, the Bigelow Carpet Company. If we assume that all its works including the Mossy Pond dam were within the scope and constructed under the authority of the mill acts, yet it was the duty of the company to use reasonable care in the construction, maintenance and management of its works to prevent injury to others. Wendell v. Pratt, 12 Allen, 464. It was its duty to use due care in observing the state of its pond, the condition of the culverts and of its retaining dam, and in the management of its flash-boards and of the water at its main dam, with reference to the strength and condition of the Mossy Pond dam. But the auditors have found that the company did not use proper care in observing the state - of its pond and of the culverts, and that it kept on its flash-boards at the main dam and accumulated in Clinton Pond the water to a height at least a foot above the flow-line it had established as the line of safety, and which the auditors find to be in [503]*503fact the line of safety in regard to the construction and strength of the Mossy Pond dam, when ordinary prudence required that it should open its flash-boards and gates so as to relieve the pressure upon the said dam. These were properly held by the auditors to be acts of negligence which rendered the company liable to the plaintiffs, as they contributed to cause the injury sustained by them.
In the view we have taken it is not necessary to consider whether the doctrine of Fletcher v. Rylands, L. R. 1 Ex. 265, and L. R. 3 H. L. 330, has any application to the case of either defendant. Taking all the findings of the auditors together, a case is presented in which each defendant was guilty of acts of negligence which contributed to cause an undue accumulation of water in the pond on the north side of the railroad, and an unsafe pressure on the retaining dam, which resulted in the disaster which injured the plaintiffs. The negligent acts of the two defendants combined produced the nuisance which injured them.
It is not the duty of the plaintiffs to attempt to apportion the degree of' negligence of each defendant, nor to determine whether the same injury would have happened to them from the negligence of one, if the negligent acts of the other had not cooperated. Having shown that they were injured by the joint or combined acts of negligence of the two, they can maintain an action against both, leaving the questions of their relative rights and liabilities to future litigation or adjustment between themselves. Churchill v. Holt, 127 Mass. 165. Stone v. Dickinson, 5 Allen, 29.
The demurrers taken by the defendants to the plaintiffs’ declaration cannot be sustained. The declaration as amended states with substantial certainty the facts which entitle the plaintiffs to maintain their action.
The result of the whole case is, that all the several demurrers must be overruled, and that the plaintiffs are entitled to judgment against both defendants, according to the report of the auditors. Judgment for the plaintiffs.