This is a complaint for flowage under E. S., c. 92, and comes before this court on demurrer to the complaint. The complaint among other things alleges that'the respondents “have heretofore erected and now maintain water mills on said stream of water, to wit: the said Eufus Gibbs a saw mill, shingle machine, and woolen factory; and said Horace JBillin gs a tannery” and that said respondents “have heretofore erected and ever since such erection maintained a dam across said stream to raise water for the use of their said mills, and to propel the machinery in the same, and still maintain said dam which is on land owned by said Gibbs and Billings and of which they have control.”
1. It is objected that the complaint does not allege that the respondent’s mills are on their own land. We think this objection is well taken. The complaint alleges that the respondents severally maintain water mills on the ‘Stream, and that they jointly maintain a dam across the stream on their own land to raise a *247sufficient head of water to operate their several mills, but there is no allegation that they, as tenants in common or in severalty own the land on which their mills stand. There should be such an allegation to bring the case within the statute. Jones v. Skinner, 61 Maine, 25. Crocker v. Millett, 65 Maine, 191.
2. It is further objected that inasmuch as the defendants are several owners of mills on the stream below the dam complained of, and own the dam and land on which it stands as tenants in common and jointly maintain it, the dam is not within the protection of the statute, and this remedy will not lie. It is claimed by the respondent’s counsel that, to bring the case within the statute, all the tenants in common of the dam must own as tenants in common a mill operated by the water raised by the dam. It is admitted by the complainant’s counsel that if this position is sound, it is fatal to the maintenance of the complaint, as the facts of the case will not'admit of an amendment to obviate the objection. But after a careful consideration of the provisions of the statute, and the able argument of the respondent’s counsel in support of this objection, we think it not tenable. Either of the respondents might erect and maintain the dam on his own land to raise a sufficient head of water to operate his mill; and no good reason is perceived why being owners of mills in severalty, they may not unite and erect and maintain a dam in common to raise sufficient water to operate them. They are the owners of the dam, and each owns a mill operated by the water raised by it. The statute does not in terms prevent mill owners from thus uniting in the maintenance of a dam. If it does not in terms clearly permit it, it is clearly within its spirit and object; otherwise the several owners of mills and privileges on opposite sides of a stream could not jointly erect and maintain a common dam across the stream for the use of the mills at each end of it, but to have the right to flow by paying damages, each must maintain a separate dam. This is believed to be in conflict with the custom in such cases, in this state, which, so far as we are aware, has not been brought in question. No case is cited by the respondent’s counsel in support of their position, and so far as we are aware the question has not been presented to the court. It was involved *248in Nelson v. Butterfield, 21 Maine, 220, but was not directly considered. It seems to have been conceded by counsel and the court that in a case like this a complaint for flowage would lie.
In Norton v. Hodges, 100 Mass. 241, the court intimates the opinion, that, when the dam is owned by one party, and by an arrangement with several mill-owners below, it is maintained to raise water for the use of their mills, all the parties to such arrangement may be joined in a complaint for flowage, but the point was not decided.
We are of opinion that the respondents are to be regarded as erecting and° maintaining a water mill, and a dam to raise water for working it, within the true meaning of the statute.
Exceptions sustained.
Appleton, C. J., Walton, Virgin, Peters and Symonds, JJ., concurred. . .