The Revised Statutes, c. 126, § 1, authorize any man to erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream that is not navigable, upon such conditions and regulations as are expressed in said chapter.
Any person sustaining damages in his lands, by their being overflowed by a mill-dam, may obtain compensation for the injury, by complaint. Sect. 5.
By § 9, the owner or occupant of such mill may appear, and plead in bar to such complaint certain things specified, or any other matter which may show that the complainant cannot maintain his suit, but he shall not plead in bar of the complaint, that the land described therein, is not injured by such dam.
At common law, an easement may be acquired upon the land of another, without proof that the owner has sustained damage. Eor the least appropriation of the land, without the consent of the owner, is an invasion of his rights, and an action can be maintained for such invasion. But the overflowing of another’s land, by the owner of a mill, to work it, by means of a dam, the mill and dam standing upon his own land, being secured by the provision referred to, his common law remedy for damages, when sustained, is taken away; and he can recover against the owner of the mill, only in the mode, and in the cases provided for by the statute.
If the owner of the land flowed, has not been injured by the flowing, he cannot maintain the action under the statute, *297against the owner of the mill for flowing his land; and having no power to prevent the flowing in such case, no prescriptive right to flow the lands without the payment of damages can be acquired against him. But if the owner of the land flowed, has a right to maintain a complaint against the owner of the mill for such flowing, the latter may acquire a prescriptive right to flow the land, without the payment of damages. It follows, that to maintain this prescriptive right to flow, it must be shown, that the flowing for the twenty years, and upwards, has caused damages to the owner of the land.
As a basis of a complaint for the recovery of damages for the flowing of lands by means of a dam and mills thereon, damages must have been sustained by the owner of the land. But whether damages have been so caused to the complainant, is not an issue to be made and tried in the court in which the complaint is entered, before the appointment of commissioners. If upon the issues which may be presented in pursuance of the provisions of § 9, the decision should be in favor of the complainant; or if the owner or occupant of the mill, after being notified, &c., shall not appear, or shall be defaulted, or shall not plead or show any legal objection to proceeding, the court shall appoint three or more disinterested persons, of the same county, commissioners, who shall go upon, and examine the premises and make a true and faithful appraisement under oath of the yearly damages, if any, done to the complainant by flowing of his lands described in the complaint, &c., § 12. And these commissioners are to determine, whether the complainant has been injured or not. The power which was given to the jury, by the statute of Massachusetts, entitled “ An Act, additional to an Act, entitled an Act for the support and regulation of mills,” passed Eeb. 28, 1798, which authorized the respondent in his plea, to dispute the statement made by the complainant, and try the issue presented on such plea, at the bar of the court, was taken away by the statute of 1821, c. 45, and given to the commissioners. Nelson v. Butterfield, 21 Maine, 220; Wood v. Kelley, 30 Maine, 47, and cases referred to in each, on the points herein considered.
*298The instructions, requested by the respondents’ counsel to be given to the jury, were properly withheld, not being predicated on the assumption, that the complainant sustained damages, during the time of the flowing, from which the respondents founded their prescriptive right to flow the land described in the complaint. And the instructions given were in accordance with the well settled construction of the statute.
It is not improper to remark, that we have been much interested in the able and critical examination by the respondents’ counsel, of the decisions of this Court upon the subject under consideration, and the reasons given for the results to which the Court came. Some remarks may be found in these opinions, made in reference to the particular facts of the respective cases, rather than what was necessary, in giving a construction to the statute in its general application, and may not have been understood, in some respects, as they were intended by the individual Judge who made them. But the exposition of the statutes of 1821, 1824, and of 1840, on the subject of mills, and the flowing of lands, for their operation, in these decisions, is believed to be correct in the doctrines which they establish. Exceptions overruled.
Cutting, Appleton, and Max, J. J., concurred.