| Mass. | Jun 15, 1859
1. The cost of the channel made by the respondents below the land flowed by them was immaterial. Evidence of its cost was therefore rightly excluded.
2. Testimony as to the effect, on other lands, of the withholding of water therefrom in the spring and setting it on in the dry season, was rightly rejected ; because it does not appear that water was withheld from the complainant’s land, in the spring. Such may have been the fact, but the case does not show it. Both the causes and the effect on other lands are not shown to have operated on the land of the complainant.
3. We are of opinion that the jury were wrongly instructed that they should give damages “ for loss of peat and manure,” caused by flowing the land. The peat, which was on the land, was personal property; and damages for injury to it are not recoverable in this process. And if the manure was not part of the real estate, the complainant is not entitled to damages for the loss of it by flowing. The value of real estate is increased by the manure that forms part of it, and of course the damage to the realty, caused by flowing, may be greater when it is manured than when it is not. But there is no reason for making the manure a special item of damage. Whether the manure was, in this case, a part of the real estate, does not appear. On this ground the exceptions are sustained.
4. Since the passing of the St. of 1824, c. 153, (which is incorporated into the Rev. Sts. c. 116,) this process has been maintainable for the recovery of damages caused by flowing land below a milldam. Shaw v. Wells, 5 Cush. 537. But damages caused by occasional abuse of the right of flowing are not thus recoverable. For wrongful overflowing of land below a dam, the remedy is by action at law. Assuming that the present process is for damages recoverable under it, we are of opinion that the other instructions given to the jury were substantially correct, and that the respondents have no legal ground of exception to the denial of their prayers for different instructions.