The ruling of the presiding judge, upon the trial of the present case, may, in the opinion of the court, be sustained upon general principles applicable to riparian proprietors, and without supposing any new rights to attach to the mill privilege below, as the effect of the awards of the referees.
The case put to the jury was, that for an unreasonable use or an unreasonable detention of the water by the owner of the mill privilege above, the jury would give damages, but not for those obstructions or retardations which necessarily result from exercising the right of a mill-owner above. In the description of such obstructions, as being “slight and substantially immaterial,” if those words had been used alone as the test of the question of liability, they might have been objectionable, and perhaps calculated to mislead the jury. But they were not so used, or susceptible of such construction, when taken in their proper connection. The jury were instructed that it was for the unreasonable use, or unreasonable detention of the water, by the defendants, that damages were to be given. They were further instructed, that the water was to be permitted to run to the plaintiff’s mill as he was accustomed to have it under the natural flow, but subject “ to those slight and substantially immaterial obstructions which necessarily result from exercising the right of a mill privilege above.” The obstructions and retardations of the water, for which the defendants were not responsible, were stated to be those necessarily resulting from the proper exercise of the mill privilege above. For any damages thus occasioned they were not held responsible. This distinctly marked the character of the obstructions to which the right to a continuous flow of the water was subject, and the rule of law applicable to the case.
As to the further question raised at the trial, of the right of the plaintiff to maintain the present action, his right to recover a moiety of the damages is quite clear. Taking the case most strongly against the plaintiff, it was only a case of joint interest in the profits of the mill, the plaintiff having one half. This
As to the further right to recover the whole damages in his own name, the only question would be whether the plaintiff should have judgment for the sum of one dollar, or for half of that sum. This is certainly more questionable; but we think, upon the whole evidence, the plaintiff is to be taken to have been in the legal possession of the mill, and Butterworth in his employment as his miller, under an agreement that he should have one half of the earnings of the mill for tending the same. Butter-worth was miller to the plaintiff, and not lessee of the mill. There was no lease, no agreement for any particular time, in which Butterworth was to be employed in the mills, or have any interest in the income of them. An agreement, by which the laborer is to receive a certain share of the profits in lieu of wages, does not necessarily constitute him a joint owner or partner, so as to require him to be joined as a plaintiff in a suit in reference to the property, in a share of the profits of which he is thus concerned. Rice v. Austin, 17 Mass. 205. Baxter v. Rodman, 3 Pick. 435. Exceptions overruled.