This is an action of trespass to recover damages arising from the building of a dam across Chandler’s river, whereby the plaintiff's hay, which he had left as was customary upon his meadow land, was destroyed by the. rise of the water in the river.
The defendants moved a nonsuit on the ground that the form of action was misconceived.
We are of opinion that this motion was properly overruled. At common law, the proper remedy for such an al*518leged injury would have been, by an action on the case. The Revised Statutes provide that in all actions of trespass, and trespass on the case, the declaration shall be deemed equally good and valid, to all intents and purposes, whether the same shall be in form a declaration in trespass, or trespass on the case. The case of Sawyer v. Goodwin, 34 Maine R., 420, referred to by the defendants’ counsel, was an action of trespass guare clausum, and does not sustain the position taken by him in this case.
The presiding judge instructed the jury that “if they found the dam the cause of the loss or injury of the plaintiff’s hay, to render a verdict for the value of the plaintiff’s hay so destroyed in consequence of the defendants’ dam.” The jury found the damage to the hay $172,21. This case comes before us on a report, and not by exceptions. We are therefore to presume that the plaintiff exercised ordinary care in securing his hay, and that the instructions of the presiding judge were unexceptionable upon this point. “ The jury further found that by the expenditure of $60, over and above what was usual and necessary before the dam was erected, the plaintiff might have preserved his hay.” We do not regard this as equivalent to finding negligence, or a want of ordinary care and prudence on the part of the plaintiff. He might not know or have good reason to expect that any such expenditure would become necessary, by building the staddles on which his hay rested, higher than he had built them before the dam was erected. If the defendants entertained such an opinion, they should have given him notice, and have offered to defray the expense of such additional structures. They knew better than the plaintiff, as to the height and tightness of their dam, and how and when they should use it, and what sluices they would have by which to let off the water.
Judgment on the verdict for $172,21 damages, and interest on the same.