Clapp v. Herrick
129 Mass. 292
Mass.
1880
Check Treatment
Gray, C. J.

The rulings and instructions at the trial were sufficiently favorable to the defendant.

1. The owner of a mill on a natural stream, who withholds or lets down the water in excessive quantities, beyond what is incident to the necessary or reasonable use and operation of his mill, is not protected by the mill acts, but is liable to an action

*296of tort at common law. for injuries thereby caused to lands below on the same stream; and the instructions given to the jury did not allow the plaintiff to recover damages on any other ground. Gile v. Stevens, 13 Gray, 146, 349. Gould v. Boston Duele Go. 13 Gray, 442. Thompson v. Moore, 2 Allen, 350. Brigham v. Wheeler, 12 Allen, 89.

2. The judgment recovered in the former action against Lowe for a similar injury was rightly admitted in evidence. Considered in and of itself, it was, as the jury were instructed, only evidence that Lowe, from whom the defendant derived his title, used his mill wrongfully, to the plaintiffs’ injury. The testimony of the plaintiff, that that action was brought for damage suffered after the new wheel was put in, and caused by it, was competent for the purpose of showing that the question actually tried and determined in the former action was the same which was in controversy in this.

3. The evidence of the condition of the plaintiffs’ land, before the new mill-wheel was put in, was admissible upon the question of the effect upon the land of the use of this wheel.

Exceptions overruled.