The opinion of the Court was drawn up by
Rice, J.This case was before this Court on a former occasion. 42 Maine, 178.
The injuries of which the plaintiff complains are, diverting the flow of water from the flume of his mill, thereby diminishing his supply; and obstructing the raceway by which the water passes from his mill, thereby, occasioning back water upon his wheels, and, by reason thereof, obstructing their operation.
These allegations are denied by the defendant. The principal part of the testimony, introduced at both trials, had reference to the back water upon the plaintiff’s wheels.
On the former trial, the defendant offered to prove, that the back water of which the plaintiff complains, so far as any *466existed, was occasioned by tbe construction of tbe wing dam on the English side, as delineated on Hayden’s plan. This testimony was excluded by the presiding Judge.
On that point, the Court remark — "In our view of the case, this testimony might have been both pertinent and important. If the evidence should fail to prove an unlawful obstruction in the raceway by the defendant, and it should appear that the water had been thrown back upon the plaintiff’s wheels, to an extent greater than heretofore, it was important to determine whether that increase of back water was occasioned by the obstructions which the defendant had made, in the manner in. which _ the water was discharged from his wheels, or by the wing dams on the English side. Eor this purpose, the testimony should have been admitted.”
The excluded testimony in relation to the wing dams, above referred to, is now before us, together with all the testimony presented to the jury on the former trial; and the Court, by agreement of parties, are authorized to draw inferences as a jury might. From a careful examination and comparison of the new testimony with that of the former trial, we are satisfied that there has been, since the changes of which complaint is made, in the defendant’s mill, a large and injurious increase of back water upon the wheels of the plaintiff’s mill; that this back water has not been occasioned by the wing dams on the English side, but is the result of an unauthorized change in the sluice of the defendant’s mill.
The parftes agree that the water* p*wer, on the dam from which these mills severally draw water, was originally divided into eight privileges. The records in the case do not show a partition of the entire power among the several original proprietors or their representatives. But the evidence in the case does show that these several privileges have, for a very long period of years, been occupied and improved in severalty. As individual estates, they have been frequently transferred by deed and levy, and have descended to the heirs of deceased parties. The water power, that is, the flow of water in the stream, is of course incapable of practical .divis*467ion, like land, by metes and bounds. Each proprietor of a mill site may, however, become the owner of any given proportion of the whole power or flow of water.
The testimony authorized the inference, and we accordingly find, that, at some remote period of time, there has been a partition among the proprietors in severalty of the eight mill sites or privileges, as they have been heretofore used and occupied, and that each of these privileges is entitled to draw from the common head of water one eighth part thereof, except so much thereof as has been parted with by the concurrence of the proprietors, or by operation of law, for sluices for lumber over said dam, or other purposes.
The evidence also shows that, during the whole time of the alleged injury, the plaintiff’s mill was under lease, and that the amount of the rent in no way depended upon the result of this suit, consequently the damages he will be entitled to recover can be nominal only.
The defendant’s mill, the Franklin, occupying one of the eight privileges on the dam, is entitled to one-eighth of the flow of the water in the stream, with the exception already referred to. Whether this mill has drawn more than its just proportion, or whether its flume is now so constructed as unreasonably to interfere with the passage of water to the flume of the plaintiff’s mill Columbus, the evidence does not distinctly show. Wo therefore make no decision upon that part of the case.
But, from the facts already found in relation to the back water, and the occasion thereof, under the agreement of the parties, a default must be entered and judgment rendered for the plaintiff for one dollar damages.
Defendant defaulted.
Tenney, C. J., Appleton, Cutting, May and Kent, JJ., concurred.