GOLDTHWAITE, J.
The plaintiff in error, Stein, is the lessee of the City Water Works of Mobile, and deduces his right to divert the water of the Throe Mile Creek, from the act of the Legislature of 20th December, 1820, (Toulmin’s Digest 798,) the preamble to which recites, that it had been represented that it would bo advantageous t.o the health and commerce of Mobile, to bo supplied with water from some of the running streams in its vicinity, and that certain persons had agreed to associate themselves together for the purpose of conducting a supply of water from the Three Mile Creek.
The first section incorporates these persons and their assigns, and confers upon the company the usual powers incident to corporations.
The second section gives the company authority to cut a canal, to contain the logs which were to serve as conduits for the water, and to enter upon the lands through which the canal passed, for the purposes of construction and repair; and provides compensation to the owners of such lands for the injuries which they might sustain.
The third section gives to the company the exclusive right of conducting the water to the city, for a term of years, on certain conditions, ono of which is, that the canal shall not be carried through any person’s land without tho consent of the owner.
The other sections regulate the water rates to be charged by the company, and prescribe penalties for injuring the logs in which the water is conveyed, cutting the hydrants, obstruct[145]*145ing the creek above the water works, and using the water in the city without paying for it.
By the act of 1841, all the rights, privileges and immunities granted under the act of 1820, are vested in the plaintiff in error, (Pamphlet. Laws 1841, p. 52,) and by the act of 1841 he is authorized to sue out writs of ad quod damnum, to ascertain what damages may be sustained by the proprietors of lands on the Three Mile Creek, in consequence of the withdrawal of the water or otherwise. — Pamp. Acts 1841, p. 5.
The first and most material question involved in this case, is, whether the act of 1820 confers upon the company any right to the use of the water in the creek. It does not give this right in express terms, and, if it exists at all, it can only he by implication. One of the probable consequences of using the water for the supply of a corporation like the City of Mobile, would he to impair the rights of the riparian owners below the point whore the' water was diverted, and, in a greater or less degree, to diminish the value of. their property. A just respect for private rights demands that legislative grants should not he so construed as to affect individual property, unless the construction can be sustained upon the express words of the act, or is clearly deducible from it. It would hardly, we apprehend, be contended, that a statute incorporating a company for the purpose of erecting a public hospital, upon lands belonging either to the General Government or an individual, would have the effect of passing the title of the land to the corporation; or, as in the case put by the counsel for the defendant in error, that the right to construct a railroad between two points, would give the right of way, any more than it would the right to use the materials for its construction found along the route. So, if the Legislature should authorize a public improvement by means of a canal, and the construction of the work would destroy or impair the value of private property, without affording the means of indemnification, the owner of the property destroyed or injured would have liis action at law against those who caused the damage. — Stevens v. Proprietors of Middlesex Canal, 12 Mass. 466. In the present case, there is nothing in the statuto’from which the intention of the Legislature to give the use of the water can legitimately be inferred; and the care with which they have guarded the rights of others, in requiring [146]*146the consent of the owners of the land through which the canal passed to be given, and providing compensation for the Injury which they might sustain, is, at least, persuasive to show that the Legislature intended to grant no right which might be detrimental to others. The right to the use of the water intended to be used by the company, under certain conditions and limitations belonged to the owners of the land through which it run. It is this right which is frequently the most valuable portion of the freehold, aud is, in some senses, as much identified with it, as the soil of which it is composed. With the provisions intended for the protection of property which are found in the statute, in the absence of any .express provision conferring the right, or any one from which it can fairly be deduced, we must hold that the act of'1820 conferred no authority to divert the water.
The act of 1841 (Acts 1841, p. 5) recognizes the right of the riparian proprietors to compensation for any injury they may sustain by the diversion of the water, and authorizes Stein to sue out a writ of ad quod damnum to ascertain the damages ; but it confers this remedy upon him alone, and, if he does not pursue it, the proprietors are not deprived of their common-law action, which is, indeed, the only course they could pursue, on the failure of Stein to proceed in the mode provided for by the statute.
It is insisted, however, that the fact that the City of Mobile owned land on the creek, upon the point where the mill of the defendant in error was located, gave to that corporation the right to the use of the water in sufficient quantities to supply the domestic purposes of its inhabitants. That a riparian proprietor has the right to consume oven the whole of the water of a stream, if absolutely necessary for the wants of himself and family, has received the sanction of judicial decision, (Evans v. Merriweather, 3 Scam. 496; Arnold v. Foot, 12 Wend. 330;) but if this doctrine be correct, it can have no application in the present instance, because it rests upon reasons which .are wholly inapplicable to corporations, which are artificial bodies, and can have no natural wants. There are, however, other considerations which would forbid the extension of this rule to the ease before us. The City of Mobile is not located upon the creek: — it is from three to five miles distant. To hold that a municipal corporation can, from the mere fact of owning land [147]*147upon a water course, acquire the right to divert the water in sufficient quantities to supply the domestic wants of its inhabitants, residing at a distance of from three to five miles, to the injury of the other proprietors, would be unreasonable in itself, and unjust to those who have an equal right to participate in the benefits of the scream.
On the trial, one of the witnesses for the plaintiff stated, that he had “owned two mills, and was well acquainted with them,” and that, in his opinion, the damage sustained by the plaintiff from the diversion of the water was very great. This evidence should not have been admitted. The damage which the party had sustained depended upon the quantity of water diverted by the defendant, and whether its diversion would materially diminish the quantity necessary for the mill of the plaintiff. The fact that the witness was well acquainted with the mill business, would not ■ inform him of the size of the creek, its supply of water, or the amount diverted. He, therefore, did not stand in a situation which would authorize him to give his opinion, as to a result which necessarily involved these questions. The objection to this testimony should have been sustained.
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GOLDTHWAITE, J.
The plaintiff in error, Stein, is the lessee of the City Water Works of Mobile, and deduces his right to divert the water of the Throe Mile Creek, from the act of the Legislature of 20th December, 1820, (Toulmin’s Digest 798,) the preamble to which recites, that it had been represented that it would bo advantageous t.o the health and commerce of Mobile, to bo supplied with water from some of the running streams in its vicinity, and that certain persons had agreed to associate themselves together for the purpose of conducting a supply of water from the Three Mile Creek.
The first section incorporates these persons and their assigns, and confers upon the company the usual powers incident to corporations.
The second section gives the company authority to cut a canal, to contain the logs which were to serve as conduits for the water, and to enter upon the lands through which the canal passed, for the purposes of construction and repair; and provides compensation to the owners of such lands for the injuries which they might sustain.
The third section gives to the company the exclusive right of conducting the water to the city, for a term of years, on certain conditions, ono of which is, that the canal shall not be carried through any person’s land without tho consent of the owner.
The other sections regulate the water rates to be charged by the company, and prescribe penalties for injuring the logs in which the water is conveyed, cutting the hydrants, obstruct[145]*145ing the creek above the water works, and using the water in the city without paying for it.
By the act of 1841, all the rights, privileges and immunities granted under the act of 1820, are vested in the plaintiff in error, (Pamphlet. Laws 1841, p. 52,) and by the act of 1841 he is authorized to sue out writs of ad quod damnum, to ascertain what damages may be sustained by the proprietors of lands on the Three Mile Creek, in consequence of the withdrawal of the water or otherwise. — Pamp. Acts 1841, p. 5.
The first and most material question involved in this case, is, whether the act of 1820 confers upon the company any right to the use of the water in the creek. It does not give this right in express terms, and, if it exists at all, it can only he by implication. One of the probable consequences of using the water for the supply of a corporation like the City of Mobile, would he to impair the rights of the riparian owners below the point whore the' water was diverted, and, in a greater or less degree, to diminish the value of. their property. A just respect for private rights demands that legislative grants should not he so construed as to affect individual property, unless the construction can be sustained upon the express words of the act, or is clearly deducible from it. It would hardly, we apprehend, be contended, that a statute incorporating a company for the purpose of erecting a public hospital, upon lands belonging either to the General Government or an individual, would have the effect of passing the title of the land to the corporation; or, as in the case put by the counsel for the defendant in error, that the right to construct a railroad between two points, would give the right of way, any more than it would the right to use the materials for its construction found along the route. So, if the Legislature should authorize a public improvement by means of a canal, and the construction of the work would destroy or impair the value of private property, without affording the means of indemnification, the owner of the property destroyed or injured would have liis action at law against those who caused the damage. — Stevens v. Proprietors of Middlesex Canal, 12 Mass. 466. In the present case, there is nothing in the statuto’from which the intention of the Legislature to give the use of the water can legitimately be inferred; and the care with which they have guarded the rights of others, in requiring [146]*146the consent of the owners of the land through which the canal passed to be given, and providing compensation for the Injury which they might sustain, is, at least, persuasive to show that the Legislature intended to grant no right which might be detrimental to others. The right to the use of the water intended to be used by the company, under certain conditions and limitations belonged to the owners of the land through which it run. It is this right which is frequently the most valuable portion of the freehold, aud is, in some senses, as much identified with it, as the soil of which it is composed. With the provisions intended for the protection of property which are found in the statute, in the absence of any .express provision conferring the right, or any one from which it can fairly be deduced, we must hold that the act of'1820 conferred no authority to divert the water.
The act of 1841 (Acts 1841, p. 5) recognizes the right of the riparian proprietors to compensation for any injury they may sustain by the diversion of the water, and authorizes Stein to sue out a writ of ad quod damnum to ascertain the damages ; but it confers this remedy upon him alone, and, if he does not pursue it, the proprietors are not deprived of their common-law action, which is, indeed, the only course they could pursue, on the failure of Stein to proceed in the mode provided for by the statute.
It is insisted, however, that the fact that the City of Mobile owned land on the creek, upon the point where the mill of the defendant in error was located, gave to that corporation the right to the use of the water in sufficient quantities to supply the domestic purposes of its inhabitants. That a riparian proprietor has the right to consume oven the whole of the water of a stream, if absolutely necessary for the wants of himself and family, has received the sanction of judicial decision, (Evans v. Merriweather, 3 Scam. 496; Arnold v. Foot, 12 Wend. 330;) but if this doctrine be correct, it can have no application in the present instance, because it rests upon reasons which .are wholly inapplicable to corporations, which are artificial bodies, and can have no natural wants. There are, however, other considerations which would forbid the extension of this rule to the ease before us. The City of Mobile is not located upon the creek: — it is from three to five miles distant. To hold that a municipal corporation can, from the mere fact of owning land [147]*147upon a water course, acquire the right to divert the water in sufficient quantities to supply the domestic wants of its inhabitants, residing at a distance of from three to five miles, to the injury of the other proprietors, would be unreasonable in itself, and unjust to those who have an equal right to participate in the benefits of the scream.
On the trial, one of the witnesses for the plaintiff stated, that he had “owned two mills, and was well acquainted with them,” and that, in his opinion, the damage sustained by the plaintiff from the diversion of the water was very great. This evidence should not have been admitted. The damage which the party had sustained depended upon the quantity of water diverted by the defendant, and whether its diversion would materially diminish the quantity necessary for the mill of the plaintiff. The fact that the witness was well acquainted with the mill business, would not ■ inform him of the size of the creek, its supply of water, or the amount diverted. He, therefore, did not stand in a situation which would authorize him to give his opinion, as to a result which necessarily involved these questions. The objection to this testimony should have been sustained.
In relation to the evidence showing the effect of the diversion of the water, upon the mill of the plaintiff, we do not think the court erred. We concede that, in this action, no recovery could be had for damages which had accrued subsequent to the commencement of the action, as those damages would properly form the ground of a new action, and, therefore, could only be recovered in that mode.—Robinson v. Bland, 2 Burr. 1077, 1086; Langford v. Owsley, 2 Bibb 215; Hoop. 286; Blunt v. McCormick, 8 Denio 283. But we do not find from the record that this evidence was offered for the purpose of showing the damages since the bringing of the action, but' simply the effect at that time of the diversion of the water, with the view of affording information to the jury of the consequences of the diversion, under similar circumstances, before the suit; and in this aspect it was properly admissible.
The evidence offered, on the part of the defendant below, to show that the plaintiff had no title to the land on which his mill was located, was properly rejected. A lessee at will, (2 Roll. Abr. 551; Sid. 647,) and a tenant at sufferance, (Ib,; 13 Co. 69; [148]*1481 East 245, n. a,) may maintain an action of trespass to real property; and the rules which govern the two actions are, in this respect, analogous. The actual possession, with the claim of title, having been proved, entitled the plaintiff to sue; and for that reason the evidence offered was irrelevant.
We think, also, that the charge of the court asserting the principle, that a riparian proprietor was entitled to damages for any disturbance of his right, without proof of actual damage, was correct. It is the invasion of the right which gives the action, (1 Win. Saunders 346 b,) and the law, in the absence of any special injury, gives nominal damages, on the ground that the undisturbed enjoyment or continuation of such acts, without the consent of the owner, would ripen into evidence of aright to do them (Young v. Spencer, 10 B. & C. 145; Hobson v. Todd, 4 Term 71; Williams v. Esling, 4 Barr 486) ; and this doctrine applies to all cases, where the act done is of such a character that, by its repetition or continuance, it may become the foundation of an adverse right. —Bliss v. Rice, 17 Pick. 23; Parker v. Griswold, 17 Conn. 288; Webb v. Port. Man. Co., 3 Sum. 189; Crooker v. Bragg, 10 Wend. 260; Blanchard v. Baker, 8 Green. 253; Ripka v. Sergeant, 7 W. & S. 9; Hulme v. Shore, 3 Green. 116; Welton v. Martin, 7 Missouri 307.
The fourth charge was erroneous. It is the established doctrine, that the exclusive enjoyment of water, or any other easement, in a particular way, for the length of time which is the period of the statute of limitations, enjoyed without interruption, is sufficient to raise a presumption of title, as against a right in any other person, which might have been, but was not, asserted. — Bolivar Man. Co. v. Neponset Man. Co., 16 Pick. 241; State v. Wilkinson, 2 Verm. 480; Cuthbert v. Lawson, 3 McCord 194; 3 Kent’s Com., 5th edition, 442.— We have held that the act of 1802, (Clay’s Dig, 327 § 83,) which fixes twenty years as the limitation to the right of entry upon land, was not repealed by the act of 1843 (Clay’s Dig. 329 § 93 ; Rawls v. Kennedy, 23 Ala. 240); and this being the case, the uniform and uninterrupted diversion of the water, for twenty years, would give to the defendant in error a title by prescription.
We do not consider it necessary to notice the argument of [149]*149the plaintiff in error upon this point, as it would amount to no more than a verbal criticism on the meaning of the word “proved,” as it is used in the bill of exceptions ; and the case must be reversed for the error previously noticed. It is sufficient to observe, that in order to acquire this right by prescription, the law requires that the mode or manner' of using the water, during the period necessary to found the right upon, should not he materially varied to the prejudice of other owners. He is not bound to use the water in precisely the same manner, or apply it in the same way ; and in this country, as in England, a change in the mode and objects of use is allowed, the only restrictions being, that the alterations made shall not be injurious to those whose interests are involved. — Cotrel v. Luttrel, 4 Co. R. 87, a ; Saunders v. Newman, 1 B. & A. 258; Hall v. Swift, 6 Scott 167; Darlington v. Painter, 7 Barr 473; Blanchard v. Baker, 8 Green. 253; Johnson v. Rand, 6 N. H. 22.
For the error we have noticed, the judgment must be reversed, and the cause remanded.