In rebuilding their dam, the defendants so constructed it that it might be made to flow the plaintiff's land four feet higher than could be done by means of their former dam; but, at the same time, the new dam was so provided with gates and roll-ways, that, when managed as the defendants claim they always have managed them and intend hereafter to manage them, the plaintiff's land has not been and will not he flowed higher than it was before. The fact that the dam was built higher than the former dam is in itself of no consequence, unless it is used to flow the plaintiff's land; and, until that is done, there has been no taking of his property for which they should be adjudged to pay. The committee in their examination should, of course, ascertain whether the dam, as constructed and managed, flows the plaintiff's land higher than the defendants have a right to flow; also, ascertain if the result of their management hitherto has been at times to flow higher than the defendants intended to flow, whether by accident or otherwise; in which event it would be their duty to assess the *Page 262 damages "that may have been or may be done thereby." But it would be manifestly unjust to compel the defendants to pay for a right to flow when they do not desire to do it, and have so constructed and managed their dam as to avoid that result.
The report of the committee should show, by some convenient and permanent monument, the exact height to which the defendants, by their dam, as constructed and managed, flow the plaintiff's land, so that he may have the means, if the defendants should hereafter elect to avail themselves of the capacity of their dam to flow higher, to show that fact and obtain his damages therefor.
Case discharged.