This is an action of case against the defendant for diverting the water from a natural watercourse over the plaintiff’s land from April 1, 1886, to the date of writ, July 26, 1886.
The watercourse flowed from Oyster River pond, and in 1885 the defendant erected a dam at the outlet of the pond, which, when the water was low, diverted the water from the brook, which the plaintiff claims damaged her pastare and a natural mill privilege on her land.
The contention between the parties is whether the plaintiff can recover in this action prospective damages, or must be limited to damages sustained prior to the commencement of the action. The court below ruled that she could recover only what she had sustained at the date of the writ.
We think this ruling correct. The case as reported, does not show the destruction of the watercourse. The flow of the water in it was diminished only. In time of drought it is prevented by the dam from flowing at all. If the dam was unlawfully *546erected, it is the duty of the defendant to remove it, or open a gate in it to give the water its natural flow over the plaintiff's land; and every day it continues the dam it is guilty of a wrong. If it removes the dam which it may at any time do, or permits the water to have its natural flow in its course, it is no longer guilty. While the dam is maintained it is a nuisance, and its continuance may be dnjoined. In such case it is the settled law of this state that damages are limited to the date of the writ. C. & O. Canal Co. v. Hitchings, 65 Maine, 140; Dority v. Dunning, 78 Maine, 881.
But the plaintiff claims that the diversion of the water by the defendant is by virtue of an act of the legislature of 1885, c. 522, which gives it authority to take it for the purposes specified; and therefore the injury is permanent.
The case does not show that the erection of the dam by the defendant was under the authority of that act. If the water was taken by it in conformity with the requirements of the act, it was not unlawful — not a tort — and this action cannot be maintained. The plaintiff must pursue her remedy for damages under section four of the act, which provides that they shall be "ascertained in the same manner, and under the same conditions, restrictions and limitations as are by law prescribed in the case of damages by the laying out of highways.” But the case as reported does not show that the defendant had taken the water in accordance with the provisions of the act.
By the report, if the exceptions are overruled the court is to assess the damages upon the evidence reported. We think the evidence does not show that the plaintiff sustained more than ten dollars damage prior to the date of the writ.
Exceptions overruled. Damages assessed at ten dollars.
Walton, Danforth, Emery, Foster and Haskell, JJ., concurred. Peters, C. J., did not sit.