The opinion of the court was delivered by
Gibson, C. J.— The law of the case was accurately laid down. It is certainly true that a nuisance can be lawfully abated only after as much time has been allowed to remove the cause of it as circumstances would permit, and by doing no unnecessary damage to it; but it is just as true, that a loss which must fall on one of two innocent persons, must be borne by him whose accident was the cause of it. The plaintiff’s raft, in attempting to pass it over a mill-dam, was unskilfully or unfortunately managed; by reason of which, the defendant’s raft, in following it, was jostled and thrown on rocks below, where it stuck fast. In a few minutes *308another raft was lodged between the two, and lay foul of both. What was to be done ? Not only was the water abating, but the stream was crowded with rafts, momentarily descending; and an hour’s delay might not only have deprived the defendant of the benefit of the flood, but have exposed his property to collision with rafts from above. In this emergency, he had a right to extricate it in the only way he could; and that he was compelled to cut loose was not his fault, but the plaintiff’s misfortune. There was, therefore, no room for complaint.
Judgment affirmed.