The opinion of the Court, at a subsequent term, was delivered by
Parris J.The law now arising in this case is to be applied to a very different state of facts from that which appeared in the case when before us in 1833. 1 Fairf. 224.
It is contended, that the complainant had no title to the land flowed, because that was covered with water, at the time of the conveyance from the common proprietors of the whole tract. We do not think the grant; is to be thus limited. If the Neguasset pond was a large pond or lake, and had not been raised by *187artificial causes, we might view this point differently. But even then much difficulty would result from the principle that all proprietors of land bordering on lakes are to be limited to the margin of the water, as it existed when the lands were originally granted by the public, perhaps a century ago ; and that whatever may have since been reclaimed by a recession of the water, is to be considered no part of the grant. We are not now called upon to decide such a case. Neguasset pond, as it is called, in its natural state, never covered any part of the two and a half acres, which the complainant claims as his property. That pond is naturally a small accumulation of water, of considerable length, but opposite lot numbered 49, is, in width not more than half the length of the lot, as delineated on Johnson’s original plan, taken in 1740. We have no boundaries given of lot 49, except as they appear on the plan. By this the eastern end of the lot is represented as bounded on the pond. We think the eastern limits of the lot were not so restricted by the margin of the pond, as it then existed, raised as it was by artificial means, as to exclude the two and a half acres from the lot, — but that when the water receded in 1789, by reason of the removal of the artificial obstructions, the complainant had a right to the soil thus disencumbered, as constituting a part of lot 49.
In 1790, this tract of two and a half acres was brought under cultivation by the complainant, and he continued to occupy it, as a part of his farm, until 1828, a period of thirty-eight years, which, by our statute would be a bar to any action that could be brought to recover possession, either by the original proprietors or their heirs. Thus the first question raised in the case is disposed of.
The Judge was requested to charge the jury, that, “if they should find that the dam complained of was generally kept up to such a height as to flow the two and an half acres from 1730, or 1760 to 1789 without any complaint on the part of the owners of lot 49, it furnished a legal presumption that the owners of the dam had a license thus to flow.” If the owner of lot 49 sustained any injury or damage by the flowing, perhaps the uninterrupted continuance of that injury for twenty years and upwards, by the mill owner, and an acquiescence by the owner of the land *188flowed and injured for that length of time, might be considered as evidence of a license. Upon this point we give no opinion, but refer to our former remarks in this case, 1 Fairf. 239.
But if the owner of Ihe land sustained no damage by the flowing, then his acquiescence ought not to be construed into an admission of right, or taken as evidence against him, either of grant or license. Generally, when one encroaches upon the inheritance of another, the law gives a right of action, and even if no actual damages are proved the action will be sustained, and nominal damages recovered ; because, unless this could be done, the encroachments acquiesced in, might ripen into a legal right, and the trespasser, by a continuance of his encroachments, acquire a perfect title.
But in the case of flowing, the owner of the land flowed can maintain no process unless he has sustained damages in his lands by their being flowed. Stat. Chap. 45, Sect. 2.—In Stowell v. Flagg, 11 Mass. 364, the court say, “ the process is given only to those who have actually suffered damage.” In the same case it is decided, that by the statute of 1795, chap. 74, for the support and regulation of mills, of which our statute is substantially a transcript, the common law remedy by action for the owners of lands for damage done by overflowing the lands by means of a mill dam lawfully erected, is taken away, and the only remedy in such case is by complaint pursuant to the provisions of the statute. A statute providing for similar objects was passed by the Provincial Government,in 1714. Province Laws, Chap’. 111. The concluding paragraph of this statute, provides, “ if the jury find no damage for the complainant, then he or they to be at the cost of the jury, as shall be allowed by the justices of said court.”
If, therefore, the common law right to maintain an action against the mill owner for, flowing his neighbor’s land, is taken away by the statute, and if the statute affords no remedy except in those cases where damages have been actually sustained, the continuing to flow under such circumstances ought not to prejudice the title of the owner of the land thus flowed. His hands are tied. He can neither resort to bis action at common law, nor to process under the statute. The mill owner can flow in perfect security without license and free from all liability to legal *189process; and so long as he can do this, no grant or license is to be presumed in his favor.
Such was the situation of the owner of this mill from the time of its first erection until the complainant “ actually suffered damage.” If he suffered no damage until 1789, he had nothing to complain of for which the law would afford him any remedy, and consequently, his omitting to complain subjects him to no legal disability.
It is entirely immaterial whether lot 37, or lot 49, was drawn first, as it is manifest from Johnson’s plan of the original survey that lot 37, did not include the mill site.
But were it material, the book of records of the proprietors in common, shows conclusively that lot 49, was first drawn, and consequently the argument which was raised, and upon which we gave an opinion, in 1 Fairf. that the grant of a mill gave the right to flow the grantor’s land, as flowed at the time of the grant, is not sustained by the facts. The facts show that the land flowed was first granted the grantor retaining the mill.
We do not perceive how the special Act of the Legislature of 1823, gave the mill owners any rights against the complainant. It relieved them from the obligation, under which they had been placed by the act of 1788 for public accommodation, but it clothed them with no rights against the owners of the land which they might overflow by reinstating their dam.
So far as it regarded private injuries the special law of 1828 had no operation. The complainant’s land had then been under productive improvement for nearly forty years, and if the mill owners found it for their interest so to flow as to interrupt and destroy that improvement there is no principle either of law or equity which gives them the right of so doing, without paying the damages.
From the view which we have taken of this case, the rejection of Hubbard’s History of the Indian wars, and Sullivan’s History of Maine, offered as evidence of the existence of the mill and dam, becomes immaterial.
The verdict must stand and such further proceedings will be had in the case, as the statute provides.