Alvey, J.,
delivered the opinion of the Court.
This is an action on the case, brought by the appellee against the appellant, for obstructing the race leading to his distillery.
There was a demurrer to the declaration, which was overruled, except as to the first count; but the appellant makes no question on the demurrer, and we shall take no further notice of it.
In the course of the trial a great number of exceptions were taken by both sides, many of which are but repetitions, raising the same question over and over again; and of the appellant’s exceptions, the sixth and tenth are abandoned by him; and for the same reason assigned for abandoning the tenth exception the seventh should have been abandoned also. The question allowed to be put to the witness is excepted to, but the answer, which may have been wholly unimportant or immaterial, is not given. Before we can reverse the ruling excepted to, we must be able to see that the party really has ground for exception, and may have been injured by what was done. For aught that appears, the answer of the witness may have been more favorable te the appellant than to the appellee.
The first, second, third, fourth and fifth exceptions taken by the appellant relate to the question of damages, and may be considered in connection with the eleventh prayer of the appellant, relating to the same question, and which was refused by the Court. t
If it be true, as contended by the counsel for the appellant, that the evidence excepted to in the eighth and ninth exceptions was wholly immaterial, we fail to perceive that it could have done the appellant any injury whatever. We think, however, that it was not altogether immaterial. It served to show how the race was treated, and the rights [134]*134of parties recognized therein, by the former owner and occupant of the land, under or through whom the appellant claims. The rulings in these exceptions must, therefore, be affirmed.
The ruling in the eleventh exception to the admissibility of evidence stated in the twelfth, must also be affirmed. The witness had been a government gauger at the appellee’s distillery, and had stated how often and for what length of time the distillery had stopped operation, during the years 1870, 1871, 1872 and 1873, and 'the quantity of whiskey that it was required, under the revenue law, to make per day. He was then asked by the appellee “ what would be the damage to the plaintiff from the diversion of the water-course, from the first of January to the 25th of July?” To this question, the witness replied, that from January to June 24th, 1872, the plaintiff did not make less whiskey than the minimum government capacity of his distillery. “This evidence would really seem to be .favorable to the appellant. It is not definite, it is true, except to the fact that the quantity was not less than a certain number of gallons per day; but, at any rate, wé do not see upon what ground it should have been excluded» The question may not, perhaps, have been in proper form ; but the answer being unobjectionable, and stating a fact material and important to the inquiry before the jury, the Court was right in not excluding it. And the evidence to the admissibility of which the twelfth exception was taken, we think was also properly admitted. It was of the declarations of the appellant himselfj in regard to the condition of the race, and which declarations were indicative of defiance and malice towards the appellee. That ’ the evidence was brought out • in rebuttal can form no objection to its admission ; the appellant himself had been interrogated, on cross-examination, as to the declarations, and he had denied making them. The evidence, therefore, was admissible for the double purpose of im[135]*135peaching the appellant and supporting the issue on the part of the appellee.
The appellant offered eleven prayers, of which the second, fourth, fifth, sixth and ninth were granted, and the other six were rejected. In those that were granted the appellant would appear to have obtained the benefit of all the law to which he could fairly make claim; and, indeed, it may be questionable whether lie did not get the benefit. of more than he was strictly entitled to have granted him.
The. first prayer was properly refused. It sought.to make the appellee’s right to recover depend upon the existence of negligence on the part of the appellant. The action was for obstructing tbe appellee’s mill-race by throwing or placing therein, or by cutting, and allowing to fall therein, trees, branches, logs, stumps, brush,.chips, stakes, leaves, etc., whereby damage accrued to the appellee. The question, in such case, is not whether the defendant has acted with due care, but whether his acts have occasioned the damage complained of. If the acts complained of were done by the appellant, or by his agents or •servants in the course of their employment, they were unlawful invasions of the appellee’s rights of property, and it matters not that they were done without negligence. JNegligence is not the gravamen of the action. Scott vs. Bay, 3 Md., 431, 445-6; Leame vs. Bray, 3 East, 593, 600; Fletcher vs. Ryland, L. Rep., 1 Ex., 163, S. C., L. Rep., 3 H. L., 330; Wilson vs. City of New Bedford, 108 Mass., 261; Cahill vs. Eastman, 18 Minn., 324; St. Peter vs. Denison, 58 N. Y. ,416. See also Bellinger vs. The N. Y. Central R. Co., 23 N. Y., 42, 47.
The third prayer was also properly rejected. It sought to exclude the appellee’s right to recover, while conceding the commission of the wrong by the appellant, upon the ground of contributory negligence by the appellee himself. The record discloses no evidence whatever of any [136]*136negligence of the appellee in connection with the commission of the wrong by the appellant. After the wrong was committed, it was certainly the duty of the appellee to avoid the consequences of that wrong, as far as he reasonably could. If, by labor, or a reasonable outlay of money, he could have stayed or avoided the consequences of the appellant’s wrong, he should have done so. All consequences resulting from his own wilful failure or gross neglect to use timely and reasonable precaution to prevent an extension or increase of the injury, should fall upon himself. The illustrations given by Mr. Chief Justice Shaw, in Loker vs. Damon, 17 Pick., 284, strikingly enforce the principle. Suppose, says the Chief Justice, a man should enter his neighbor’s field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and wilfully and obstinately, or through gross' negligence, leaves it open all summer, and cattle get in, it is his own folly. So, if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after. notice of the fact, and his furniture, or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would-be too remote. This principle is sanctioned by this Court in the case of Middlekauff vs. Smith, 1 Md., 329, 342, where the case of Loker vs. Damon is referred to with approval. But in this case, the object of the prayer was to exclude in toto
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Alvey, J.,
delivered the opinion of the Court.
This is an action on the case, brought by the appellee against the appellant, for obstructing the race leading to his distillery.
There was a demurrer to the declaration, which was overruled, except as to the first count; but the appellant makes no question on the demurrer, and we shall take no further notice of it.
In the course of the trial a great number of exceptions were taken by both sides, many of which are but repetitions, raising the same question over and over again; and of the appellant’s exceptions, the sixth and tenth are abandoned by him; and for the same reason assigned for abandoning the tenth exception the seventh should have been abandoned also. The question allowed to be put to the witness is excepted to, but the answer, which may have been wholly unimportant or immaterial, is not given. Before we can reverse the ruling excepted to, we must be able to see that the party really has ground for exception, and may have been injured by what was done. For aught that appears, the answer of the witness may have been more favorable te the appellant than to the appellee.
The first, second, third, fourth and fifth exceptions taken by the appellant relate to the question of damages, and may be considered in connection with the eleventh prayer of the appellant, relating to the same question, and which was refused by the Court. t
If it be true, as contended by the counsel for the appellant, that the evidence excepted to in the eighth and ninth exceptions was wholly immaterial, we fail to perceive that it could have done the appellant any injury whatever. We think, however, that it was not altogether immaterial. It served to show how the race was treated, and the rights [134]*134of parties recognized therein, by the former owner and occupant of the land, under or through whom the appellant claims. The rulings in these exceptions must, therefore, be affirmed.
The ruling in the eleventh exception to the admissibility of evidence stated in the twelfth, must also be affirmed. The witness had been a government gauger at the appellee’s distillery, and had stated how often and for what length of time the distillery had stopped operation, during the years 1870, 1871, 1872 and 1873, and 'the quantity of whiskey that it was required, under the revenue law, to make per day. He was then asked by the appellee “ what would be the damage to the plaintiff from the diversion of the water-course, from the first of January to the 25th of July?” To this question, the witness replied, that from January to June 24th, 1872, the plaintiff did not make less whiskey than the minimum government capacity of his distillery. “This evidence would really seem to be .favorable to the appellant. It is not definite, it is true, except to the fact that the quantity was not less than a certain number of gallons per day; but, at any rate, wé do not see upon what ground it should have been excluded» The question may not, perhaps, have been in proper form ; but the answer being unobjectionable, and stating a fact material and important to the inquiry before the jury, the Court was right in not excluding it. And the evidence to the admissibility of which the twelfth exception was taken, we think was also properly admitted. It was of the declarations of the appellant himselfj in regard to the condition of the race, and which declarations were indicative of defiance and malice towards the appellee. That ’ the evidence was brought out • in rebuttal can form no objection to its admission ; the appellant himself had been interrogated, on cross-examination, as to the declarations, and he had denied making them. The evidence, therefore, was admissible for the double purpose of im[135]*135peaching the appellant and supporting the issue on the part of the appellee.
The appellant offered eleven prayers, of which the second, fourth, fifth, sixth and ninth were granted, and the other six were rejected. In those that were granted the appellant would appear to have obtained the benefit of all the law to which he could fairly make claim; and, indeed, it may be questionable whether lie did not get the benefit. of more than he was strictly entitled to have granted him.
The. first prayer was properly refused. It sought.to make the appellee’s right to recover depend upon the existence of negligence on the part of the appellant. The action was for obstructing tbe appellee’s mill-race by throwing or placing therein, or by cutting, and allowing to fall therein, trees, branches, logs, stumps, brush,.chips, stakes, leaves, etc., whereby damage accrued to the appellee. The question, in such case, is not whether the defendant has acted with due care, but whether his acts have occasioned the damage complained of. If the acts complained of were done by the appellant, or by his agents or •servants in the course of their employment, they were unlawful invasions of the appellee’s rights of property, and it matters not that they were done without negligence. JNegligence is not the gravamen of the action. Scott vs. Bay, 3 Md., 431, 445-6; Leame vs. Bray, 3 East, 593, 600; Fletcher vs. Ryland, L. Rep., 1 Ex., 163, S. C., L. Rep., 3 H. L., 330; Wilson vs. City of New Bedford, 108 Mass., 261; Cahill vs. Eastman, 18 Minn., 324; St. Peter vs. Denison, 58 N. Y. ,416. See also Bellinger vs. The N. Y. Central R. Co., 23 N. Y., 42, 47.
The third prayer was also properly rejected. It sought to exclude the appellee’s right to recover, while conceding the commission of the wrong by the appellant, upon the ground of contributory negligence by the appellee himself. The record discloses no evidence whatever of any [136]*136negligence of the appellee in connection with the commission of the wrong by the appellant. After the wrong was committed, it was certainly the duty of the appellee to avoid the consequences of that wrong, as far as he reasonably could. If, by labor, or a reasonable outlay of money, he could have stayed or avoided the consequences of the appellant’s wrong, he should have done so. All consequences resulting from his own wilful failure or gross neglect to use timely and reasonable precaution to prevent an extension or increase of the injury, should fall upon himself. The illustrations given by Mr. Chief Justice Shaw, in Loker vs. Damon, 17 Pick., 284, strikingly enforce the principle. Suppose, says the Chief Justice, a man should enter his neighbor’s field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and wilfully and obstinately, or through gross' negligence, leaves it open all summer, and cattle get in, it is his own folly. So, if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after. notice of the fact, and his furniture, or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would-be too remote. This principle is sanctioned by this Court in the case of Middlekauff vs. Smith, 1 Md., 329, 342, where the case of Loker vs. Damon is referred to with approval. But in this case, the object of the prayer was to exclude in toto the appellee’s right to recover damages for any injury to-which his want of diligence contributed. It is only to the extent of the contribution by wilful failure or gross neglect, that the party, in a case like the present, should be precluded from recovering. It is a question to be considered in assessing the damages, and does not go to the [137]*137right of the plaintiff to maintain his action and recover against the wrongdoer. Sedg. on Dam., (6 ed.,) 107. But, by the ninth prayer, which was granted, the appellant was given the full benefit of all that he'could possibly contend for with respect to this question.
The seventh prayer was clearly objectionable, and was therefore properly refused. It was designed to restrict the power of the jury in deducing conclusions from certain facts before them. We can perceive no reason why it should not he competent to the jury, in considering all the circumstances of the case, to infer from the fact that obstructions were found in the race subsequent to the 25th of July, 1872, that they were there before, that time. And as to the eighth prayer, that, we think, was also properly rejected. We are not aware of any principle that would require notice to he given by the plaintiff to the defendant, in a case like this. The placing the obstruction in the race was an infringement of the owner’s absolute right of property, and the continuing such obstruction was equally an infringement of the right, and this the appellant was hound to know at his peril. He had no claim to notice to remove the obstruction before action brought; and therefore there was no error in refusing the eighth prayer.
The Court below was right in rejecting the tenth prayer, if for no other reason, because the proposition it contained was fully embraced by the fourth and fifth prayers, which were granted. The appellant, therefore, was not injured by the rejection of his tenth prayer, even if it were conceded to embody a correct principle of law, — a question in regard to which we express no opinion.
We come now to the question of damages, raised by the eleventh prayer, which was rejected, and by the first, second, third, fourth and fifth exceptions, as to the admissibility of evidence relating to the same subject.
The prayer proposed, as the measure of damages, the amount which should he found that the appellee necessarily [138]*138expended in making good any deficiency, in the producing capacity of his distillery, occasioned by the wrongful obstruction of his race; the amount which he necessarily expended in clearing the race, and such amount as the jury might find to be a fair rental value of the distillery for the time the appellee was entirely deprived of the use of it, by the wrongful obstruction of the race. As opposed to this measure of damages, the appellee claimed to be entitled to recover for all the consequences resulting from the wrongful acts of the appellant, including the loss of profits on the product of the distillery, during the time the injury was suffered. And in his declaration the appellee averred that, by reason of the wrong complained of, he had “lost the whole benefit, profit and advantage of his said distillery, and had been greatly prejudiced and damnified in his possession thereof, and in his said trade, business and employment.”.
Whatever diversity of judicial opinion and decision may exist upon this subject, we' think there was no error committed by the Court below in refusing the prayer of the appellant. There was very definite proof before the jury as to the extent of profit that was lost in consequence of the obstruction of the race ; and we think the prayer was too restrictive as to the subjects in respeGtto which damages could be properly assessed.
In the case of White vs. Moseley, 8 Pick., 356, a question was presented very similar to that presented in this case. That was an action of trespass for breaking down, and destroying part of a mill-dam, and damages 'were assessed for the cost of repairing the dam, and also for interruption to the use of the mill, or.diminution of profits occasioned by the break in the dam. It was there objected that damages for the latter cause could not be recovered in that action ; but the Court held otherwise, and said : “The interruption to the use of the mill and the diminution of the plaintiff's profits on that account, were alleged in [139]*139the declaration and proved at the trial; and we think this was right. The plaintiffs are entitled to recover for all the damages they suffered by reason of the trespass.” This ruling of the Court is embodied in the text of Sedgwickon Damages, p. 89, (6 ed.) ; and, in a note to the same paragraph, it is said that “It may now be assumed to he the general rule that in actions of tort, where the amount of profits of which the injured party'is deprived, as a legitimate result of the trespass, can be shown with reasonable certainty, such profits constitute to that extent a safe measure of damages. In these cases, the rule adopted with reference to certain breaches of contract which makes the offending party liable for the loss of profits, so far only as he foresaw, or should have forseen that particular consequence of his act, does not apply. He who commits ar-^ trespass must he held to contemplate all the damages / which may legitimately follow from his illegal act, whether / he might have forseen it or not; and so far-as it is plainly/ traceable, he should make compensation for it. To this extent, the recovery of a sum equal to the profits lost, while fairly within the principle of compensation, is also within the limits which exclude remote consequences, from the scale in which the wrong is weighed.” And to this extent, we think, this Court has gone, in support of the right to recover for lost profits, in the case of Brown &' Otto vs. Werner, 40 Md., 15, and we think the principle reasonable and just. It is true, it may not he practicable in all cases, indeed we know it is not, to distinguish with accuracy what is certain, and therefore within the rule just stated, from what is uncertain, and therefore to he excluded, as too remote and contingent. But cases are abundant in which lost profits of a trade or business have been determined to he proper elements.in estimating dam- \ ages ; and if it be a rule that can be applied in any j case, we can perceive no sufficient reason for excluding it J in this.
[140]*140(Decided 16th June, 1876.)
As to tlie questions of evidence raised by the several exceptions bearing upon the subject of the measure of damagesj they all seem to have had in view the exclusion of lost profits as an element of the damages to which the appellee was entitled. But whether with reference to the extent of profits lost, or the measure and extent of damages according to the appellant’s prayer, the evidence would seem to be equally admissible.
Finding no error in any of the appellant’s exceptions, we affirm the judgment.
Judgment affirmed..