This is an action on the case to recover damages caused by a dam erected by the defendants upon their own land. The plaintiff owns the land overflowed. The defendants own the land upon which their dam is built, but they own no mill. They erected and now maintain the dam as a reservoir dam for the benefit of mill owners below, but they have no interest in the mill for the use of which the water is retained, nor in the land upon which the mill is erected.
The plaintiff has been injured by the defendants’ dam, and is entitled to compensation therefor. The question presented for determination is whether this action is maintainable, or whether the process should not have been a complaint under R. S., c. 92, § 1.
Under the act of 1621, c. 45, it was decided in Farrington v. Blish, 14 Maine, 423, that a complaint for flowing lands under that statute must allege that the respondent has erected a watermill on his own land or the land of another with his consent, that it became necessaiy to raise a suitable head of water to work said mill, whereby the plaintiff’s land was overflowed, etc., with an averment of damage thereby sustained. In that case the complainant obtained a verdict, but judgment was arrested, because the complaint contained no averment, “that the respondents had erected or caused to be erected, on their own land, or on- the land of another, person by his consent, any water-mill whatever; or that they had any concern or interest in any such mill; or that it was necessary to raise any head of water for the working of any mill.”
By R. S., c. 92, § 1, “any man may erect and maintain a ' water-mill and dams to raise water for working it, on his own land, upon and across any stream not navigable,” &c. It has been decided, after a careful review of the legislation relating to flowage, that under the present statute, the complaint must allege the defendant’s ownership of the land on which the dam causing the flow-age is erected, and that if this allegation is omitted, it would be bad on demurrer. Jones v. Skinner, 61 Maine, 25. This act is *195substantially like the statute of 1821, and the construction given to that must apply to this.
The mill is the principal. The dam is subservient to it. The mill and the dam must both be upon the land of the mill owner to bring the ease within, the statute. Farrington v. Blish, 14 Maine, 423.
It is apparent that in accordance with the decisions of this court a complaint under the ñowage act cannot be maintained. But there is a remedy for the injury sustained, and that is by an action on the case, which was the common law remedy before any legislation on the subject. Exceptions overruled.
Walton, Barrows, Danforth, Yiegin and Peters, JJ., concurred.