The respondent interposes various objections to sustaining this complaint. The principal one is, that the mill was not erected by the respondent, the owner of the dam, but by his lessee. This objection is strongly urged, and is supposed, by the counsel for the respondent, to be sustained by the case of Fitch v. Stevens, 4 Met. 426. But the principle settled in that case was a much more limited one. It was only that a proceeding by complaint, under the mill act, to recover damages for the flowing of land, cannot be maintained where nothing has been done beyond the erection of a dam; no mill being attached thereto and no intent existing forthwith to erect such mill. That case was in many respects widely different from the present. The complaint there was against" Stephen Stevens, who had erected the dam without the mill, Jonathan C. Stevens having erected the mill on his own land below; and the court were of opinion, that a complaint against the owner of a dam without any mill, and before any mill was erected, or any present intention to erect one existed, was not well founded under the statute, and would not authorize an assessment of damages against such party. _
The difference between the case, cited, and the case before us. is quite obvious. In the present case, the dam. and mil] *306are both on the land of the respondent, and both were erected before the filing of the complaint; and the respondent, although he had leased the dam and mill privilege to a lessee, yet retained an interest in the water raised by the dam, and a direction in the management of the dam. The case, in fact, describes every thing material to bring the case within the provisions of the Rev. Sts. c. 116; unless it is a valid objection to maintaining this complaint, that the respondent had made the lease to Harlow, as before stated. Did that lease operate to defeat the complainant’s right to maintain this complaint, and to recover damages for flowing his land by the water raised by this dam ? We think not, and that the dam and mill both being on the land of the respondent, he may be held liable to this process, although the mill privilege was subject to a temporary lease to a third person, who, after taking such lease, erected the mill under t.he circumstances already stated.
The mill, thus built upon the land of another person, becomes attached to the real estate of the owner of the land, and he is to be taken to be the owner'of the mill. The respondent leased the privilege, with the expectation that, there was to be a mill erected near the dam by Harlow; and under certain stipulations as to his own use of the water and control of the dam. The statute authorizes proceedings to be instituted against either the owner or the occupant; and we are satisfied, upon the facts stated, that the respondent is liable; and that the complaint should be sustained, and that a jury should be ordered to assess the complainant’s damages.