Simmons, Justice.
Darnell filed his equitable petition against the Southern Marble Company, alleging that he was the owner of certain lots of land upon which was situated a valuable mill-site, where he had intended to erect a mill, and that on another lot there were valuable mineral deposits of ochre; that two streams flowed through these lots, supplying sufficient water to run the mill and work the mine; that the defendant had cut a certain ditch five miles in length, whereby a portion of the water which naturally flowed through his land was diverted, thus causing damage to his mill-site and mine. He prayed for damages and an injunction. The jury, under the charge of the court, returned a verdict for the plaintiff for damages, and decreed a perpetual injunction. The defendant made a motion for a new trial, which was overruled, and it excepted.
1. Several grounds of the motion for a new trial complain of rulings of the judge allowing evidence to be introduced showing the profits which the plaintiff’ could have made if he had erected the mill, the rent of the mill, etc., and of certain charges of the judge upon this theory of-the case and on the measure of damages, all of which will be found, in the official report. As there is to be a new trial, we will lay down a general rule which we think ought to control the case. We think where a person goes upon a stream above the land of [246]*246another, and diverts part of the water from his lands by means of a permanent ditch, which water would naturally have flowed upon his lands to the mill-site, and which might have been used as a part of the water to operate the mill if one had been erected there, the proper measure of damages in such a case would either be the difference in the value of the land without the diverted water and its value with that water running to the mill-site, or the like difference as to the value of the mill-site itself. The owner would be entitled to recover one or the other of these differences at his election. .Inasmuch as the owner had not erected a mill upon the site, nor done anything preparatory to its erection, his intention at the time the water was diverted, or at a previous or subsequent time, to erect a mill on the site in question, would make no difference as to the measure of damages. No mill having been erected, the anticipated profits arising from the running of a mill could not be recovered, and proof as to the pi’obable extent of such profits was inadmissible. The charge of the court as to the recovery of such profits was error.
2. The like measure of damages would apply to the ochre or manganese mine, the same never having been opened or worked or put in a state of preparation for applying the water to it.
3, 4. It was contended on the part of defendant that the plaintiff is estopped from claiming damages, because when the ditch was being dug, he knew the purpose for which it was intended, and not only stood by and saw the work going on, but was actually employed by the defendant to assist in digging the ditch and was paid for this service. If this be true, we think the plaintiff could not afterwards complain that the ditch diverted water from his premises. It would be inequitable and unjust to allow him to recover damages for an injury resulting from this cause. He could not stand by while [247]*247the ditch was being constructed at a heavy expense, or aid in the digging of the ditch, receiving compensation therefor and making no objection, and then recover damages for the diversion of the water from his premises, when he knew or ought to have known that this would be the result of the construction of the ditch. Under these facts, he would be estopped from obtaining an injunction against the use of the ditch and the continuous •diversion of water thereby. Judgment reversed.
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