This is an action on the case to recover damages to the plaintiff’s mills and for the interruption of his mill business, alleged to have been caused by the defendants placing flush boards upon their dam on the Cobbosseecontee stream in Gardiner, whereby the water was made to flow back in Purgatory stream in Litchfield, on which the plaintiff’s mills and dam are situated. It comes before the court on motion and exceptions.
There are two counts in the writ. The particular injuries caused *364by- the defendants’ erections, as set forth in the first count, are “hindering and obstructing the use of said mills and machinery and rendering the same of little or no value, and subjecting the plaintiff to great loss and expense by the interruption of the business of said mills, and depriving him of the profit thereof.” The injuries complained of in the second count are that “the wheels of the mills were hindered and obstructed so that the plaintiff was unable to use his said mills, mill-privilege and machinery to any advantage or profit, but wholly lost the same, and was otherwise greatly injured and damnified.”
As the plaintiff was a copartner with his sons during a portion of the time covered by the writ he did not claim, nor was he allowed to receive any damages in consequence of loss of profits or for preventing the use of the mills for that pei’iod of time, but was confined to such damages as resulted from direct injuries to the mills and machinery for which the jury returned a special verdict.
During the balance of the time specified in the writ it was in evidence that the sons of the plaintiff operated the mills under a verbal lease to pay a rental of $500, if the mills were not flowed out as they were the previous year; 'but if they were thus flowed out, they were not to pay any rent. The jury returned a verdict of $566.03 “for loss of rent.”
There is no count in the writ alleging damages for loss of rent in express terms, nor for diminution of rent, and the counsel for the defendánts requested the presiding justice to instruct the jury that “the plaintiff under the counts in his writ is not entitled to recover for diminution of rents for his mill and machinery, as he had set out no such cause of action therein.” This request was denied,’ and the jury were instructed that the measure of damages .would be the difference between the fair rent of the mills with the flush boards on, and the rent without the flush boards.
It is a well established rule in pleading that when special or peculiar damages are claimed, such as are not the usual or natural consequences of the act done, they should be specifically set forth in the declaration, by way of aggravation, that the defendant may *365have due notice of the claim. Special damages are those which may be given in evidence to aggravate the damages sued for in an action already pending, or which may be themselves distinct causes of action. Dickinson v. Boyle, 17 Pick., 78; Smith v. Sherman, 4 Cush., 413.
It was held in Parker v. City of Lowell, 11 Gray, 358, which was an action of tort for the obstruction of a culvert, that the loss of rents is in the nature of special damages, and is not recoverable unless specifically set forth in the declaration. Squier v. Gould, 14 Wend., 159; Adams v. Barry, 10 Gray, 361; 1 Chitty on Pleading, 441. Sedgwick on Damages, (6th ed.,) 730, 731, 732, and notes.
The jury were instructed that the loss or diminution of rent occasioned by the wrongful acts of the defendants, would be the measure of damages. Our conclusion is that the instructions upon this point are erroneous, and that there is error in the refusal to give the requested instruction in respect to the necessity of a special count for loss or diminution of rent. There is, in truth, no count in the writ to sustain the verdict of the jury “for loss of rent.”
Nor is this infirmity cured by the allegation of loss of profits in the first count in the writ. Profits are clearly distinguishable from rents. Both terms are technical in their nature, and neither necessarily includes the other ; there may be profits without rents, and vice versa. The other requested instructions were given, and the rulings in respect to the admission and exclusion of evidence appear to be unobjectionable.
There is nothing in the motion that calls upon us to set aside the verdict. The plaintiff is entitled to recover the damages done to the mill and machinery which the jury found to be $93.24. For that sum the plaintiff may have judgment, if he will remit from the verdict all but that amount and interest thereon from the date of the verdict. Otherwise the verdict must be set aside and a new trial granted. Judgment accordingly.
Appleton, C. J., Walton, Barrows and Danporth, JJ., concurred.