delivered the opinion of the Court. The plaintiff’ demands damages for an injury dqne to his real estate, by
Several grounds of defence were relied on at the trial, only one of which is presented for our consideration ; and this arises on an exception taken to the instruction of the court to the jury. By the facts reported it appears, that the plaintiff commenced preparations for erecting his mill in December, 1836, and then laid down two sills for an apron to his contemplated mill, but before he had erected and completed his mill, the defendants had completed their dam and mill below, whereby the plaintiff’s workmen were interrupted and prevented from proceeding with the plaintiff’s work. There was a question as to the priority of the commencing these operations, and also as to the defendants’ prior right under the title of one Isaac Hunter, who erected a mill on the defendants’ mill-site, in 1823 ; but these questions are not material. The jury were instructed, on the whole evidence, that if they believed that the Hunter dam was not abandoned, the plaintiff’s only remedy was under the mill acts. The correctness of the principle laid down depends on the construction of the 2d section of the same statute. That provides, that “ no such dam shall be erected, to the injury of any mill lawfully existing, either above or below it, on the same stream, nor to the injury of any mill site on the same stream, on which a mill or mill dam shall have been lawfully erected and used, unless the right to maintain a mill, on such iast mentioned site, shall have been lost or defeated, by abandonment or otherwise.”
The question is, whether the present case is brought within this prohibitory clause of the statute. And it is the opinion of the Court that it is not. At the time defendants’ dam was erected the plaintiff had no existing mill. The defendants’ dam was erected in April, 1837 ; and the plaintiff’s mill was not completed until the December after. The plaintiff’s
The case of Bigelow v. Newell, 10 Pick. 348, was cited in support of the plaintiff’s claim ; but as that case was decided before the Revised Statutes, it cannot control the obvious meaning of the 2d section of the statute.
Judgment on the verdict.