The opinion of the Court was read as drawn up by
Parker C. J.There can be no doubt that the verdict is right in principle. The plaintiff had enjoyed the use of water for the purpose of driving bis mill, for more than forty years. The defendant had enjoyed the use of the same stream after it left his own mill, situated above the plaintiff’s mill, for the purpose of irrigating his lands ; but in 1817, to increase the privilege for the benefit of his lands, he took the water from its usual channel by means of a ditch, which conveyed it so far through his lands as by absorption and evaporation to dimmish the quantity, which before that time came to the plaintiff’s mill, so materially as to injure and stop his works. The right to do this is claimed by the defendant as resulting from the decision of this Court in the case of Weston v. Mden. There is a material difference between that case and the one before us. The plaintiff Weston had not erected any mill; the injury complained of was only that less water came through his land than used to flow before the defendant made his sluices, and the damage complained of was only the natural consequence of the lawful use of the water by the defendant. It did not appear that the plaintiff or those before him in the estate, had erected any works of art upon the stream, or had appropriated the water running through bis land by any artificial means. Whereas in the case before us the plaintiff, and those *271whose estate he holds, had erected and maintained mills at great expense, and they could be profitably used only by enjoying the customary flow of water, and this use had been acquiesced in by the defendant, and those who preceded him in his estate, for more than forty years.1
The plaintiff’s counsel in this case seemed to admit, .hat jf the case of Weston v. Alden is law, they had no right of action, and relied upon the case of Colburn v. Richards as having overruled it; but we do not consider this latter case in that light. The circumstances were materially different, particularly in this, that in the case of Colburn v. Richards, the defendant, who was sued for removing the dam, had a gristmill which had stood fifty years, the working of which was impeded by the measures taken to irrigate his land. The two cases may well stand together, and the latter of the two governs the case now before us
Judgment according to the verdict.1
See 3 Kent’s Comm. (2d ed.) 441 to 454; Tyler v. Wilkinson, 4 Mason, 397; Haight v. Morris Aqueduct, 4 Wash. C. C. R. 601; Cooper v. Smith, 9 Serg. & Rawle, 26; Butz v. Ihrie, 1 Rawle, 218; Hepburn v. McDowell, 17 Serg & Rawle, 383; Smith v. Smith,4 Halsted, 141; Ingraham v. Hutchinson, 2 Connect. R. 584; Gleason v. Gary, 4 Connect. R. 418; Manning v. Smith, 6 Connect. R. 289; Sherwood v. Burr, 4 Day, 244; Reid v. Gifford, 1 Hopkins’s Ch. R. 416; Stiles v. Hooker, 7 Cowen, 266; Mitchell v. Walker, 2 Aiken, 266; Russell v. Scott, 9 Cowen, 279; Matthews on Presumptions, ch. 16, § 10; Ricard v. Williams, 7 Wheat. 59; King v. Tiffany, 9 Connect. R. 162; Twiss v. Baldwin, 9 Connect. R. 291; Mason v. Hill, 2 Neville & Man. 747; S. C. 5 Barn. & Adol. 1; Canham v. Fiske, 2 Crompt. & Jerv. 126; S. C. 2 Tyrwh. 155. Whether aquatic rights are acquired by mere prior occupancy not continued for twenty years, guare. Blanchard v. Baker, 8 Greenl 253. See also King v. Tiffany, ubi supra, Platt v. Johnson, 15 Johns. R. 213; Merritt v. Brinkerhoff, 17 Johns. R. 306; Ingraham v. Hutchinson, ubi supra.
See Runnels v. Bullen, 2 N. Hamp. R. 532; Tyler v. Wilkinson, 4 Mason, 397; Thompson v. Crocker, 9 Pick. 59; Blanchard v. Baker, 8 Greenl. 253; Merritt v. Brinkerhoff, 17 Johns. R. 306; Van Bergen v. Van Bergen, 3 Johns. Ch. R. 282; Beissell v. Sholl, 4 Dallas, 211; Palmer v. Mulligan, 3 Caines’s R. 307; Merritt v. Parker, 1 Coxe’s (New Jers.) R. 460; Coalter v. Hunter, 4 Randolph, 58; Hutchinson v. Coleman, 5 Halsted, 74; Barron v. Baltimore, 2 Amer. Jurist, 203; Hammond v Fuller, 1 Paige, 197; Cooper v. Williams, 4 Ohio R. 286; Cooper v. Hall, 5 Ohio R. 322; Haynes v. Gault, 1 M'Cord, 543; Williams v. Gale, 3 Harr. & Johns. 231; Strickler v. Todd, 10 Serg. & Rawle, 63; Williams v. Morland, 2 Barn. & Cressw. 910; S. C. 4 Dowl. & Ryl. 583; *272Wright v. Howard, 1 Sim. & Stu. 190; Mason v. Hill, 3 Barn. & Adol. 304; S. C. 2 Neville & Man. 747; S. C. 5 Barn. & Adol. 1.
In an action of the case for diverting a water-course, if the unlawful diversion be proved, the plaintiff is entitled to recover without proof of actual damage. Blanchard v. Baker, uli supra. But see Thompson v. Crocker, and Cooper v. Hall, ubi supra; Harrison v. Sterret, 4 Harr. & M'Hen. 540.