The opinion of the Court was drawn up by
Parker C. J.It appears to us that the statute on wmch this complaint is founded does not apply to the case, as stated in the plea in bar. The statute remedy is intended only fox *97eases where the owner of mill privileges, or those who have legally obtained the consent of the owner, should by means of a dam so raise and spread the water as to injure the lands of others. The case before us is where the legislature have granted the right to the corporation to obstruct a navigable river by a dam, making provision in the act itself for the security of owners of land against an injurious flowing thereof.1 The height of the dam is determined by the statute, and therefore a jury would have no right to reduce it. The right to keep up the same head of water throughout the year is granted ; a jury, therefore, could not restrain the corporation to particular seasons of the year, as it is their duty to' do under the statute of 1795. [See Revised Stat. c. 116, § 18.]
Upon these two important points, there being no jurisdiction under the complaint, it would follow that the case is not at all within the statute, for in order to sustain the jurisdiction of the Court of Common Pleas by a jury, there should be power, if the case required it, to execute all the powers given by the statute. A jury once impannelled under that statute, would be obliged to assess yearly damages, to limit the height of the dam, and to fix the time when it is not necessary to flow the lands at all.2 The jury is obliged under oath to perform these duties, and any verdict which should show that they had neglected them would be void.
Under this complaint then, if it be sustainable, the anomalous case might exist, of a jury in the country discussing the merits of a grant of the legislature, and at their discretion repealing it.
What then is the remedy if any one is injured by the execution of the act of the legislature ? An action at common law. The act gives a right to erect the dam in a form sup posed to be sufficient to protect from injury the property of the land owners ; if it turns out insufficient, they will have an action for the consequential injury.
Replication adjudged, bad.
See Constit. of Massachusetts, Amendments, art. 5; Comins v. Bradbury, 1 Fairfield, 447; Stowellv. Flagg, 11 Mass. R. (Rand’s ed.) 366, note a, Case v. Thompson, 6 Wendell, 637; Baker v. Boston, 12 Pick. 194; 2 Kent’s Comm. (3d ed.) 337 to 340.
See Revised Stat. c. 116, § 18.