The opinion of the Court was delivered by
Mercur, J.The defendant in error was entitled to a reasonable use of the water of the stream for the purpose of operating his mill and machinery, and of the pond for the storage of logs, and for moving them and getting them to his mill, -without any undue obstruction or check by the owners of the tanneries above. The latter were not liable in damages for such interruptions of the water, as necessarily and unavoidably resulted from their reasonable use. The learned judge correctly stated the law as to the relative rights of the parties to the use of the water, and to this no error is assigned. The main objections are to the admission of evidence, and to the measure of damages.
The producing power of the mill, and the profits in operating the same when unobstructed by the acts of the plaintiff in error, are pertinent facts in fixing the amount of damages. The facilities and expense of getting logs to the mill, and the cost thereof, undoubtedly affect the profits arising from the manufacture of lumber. Evidence of the proximity and quantity of timber belonging to the owner of the mill was therefore relevant.
*165The claim was for damages sustained by obstructions in the pond in the years 1875 and 1876. The suit was brought in January, 1877. It would have been error to admit evidence of the condition of the pond after suit brought as a basis for damages; but no damages were claimed for that year. The evidence of its condition in 1877 was followed by showing that to be the same condition it was in the previous year, and the damages prior to 1877.
Damages for injury to property vary according to the nature and character of the property. The value of a mill depends on the profits which result from its being kept in operation. Whatever interrupts the use thereof, so that it cannot be worked to advantage, causes loss and damage. The ability' of the mill to be run with profit, without the obstruction, was a fact clearly admissible in evidence. The Court correctly said: “ The measure of damages is the difference between the annual value or use of his mill, unaffected by the deposit and as affected by it.” Nor did it err in declining to instruct the jury not to consider any special contracts which he may have had or been able to obtain. They were not such speculative or anticipated profits as to exclude them from the'jury. Whether or not the business of manufacturing lumber was depressed during the years in question, might seriously affect the profits, and consequently lessen the damages of an interruption; yet it by no means barred the right of the defendant-in error to recover for actual damages sustained as the immediate consequence of the wrongful act of the plaintiffs in error. The compensation might be less, but whatever it was he was entitled to receive it. We do not deem it necessary to consider all the assignments seriatim. Single sentences might be found in the charge subject to criticism; yet, taken as a whole, it is not calculated to mislead, and contains a just statement of the law: Pennsylvania Railroad Co. v. Dale, 26 P. F. Smith, 47.
Judgment affirmed.