If upon the facts stated in the bill of exceptions the plaintiffs have any cause of action against any of the defendants, it is for obstructing the passage of the stream through the culvert, during the time of the freshet that occurred in April 1865. Up to that time no cause of action had accrued. If there had been a nuisance, it was a public nuisance merely; and for this, a private action does not lie.
The jury were rightly instructed that there was no evidence to maintain the action against the defendants Pratt and Haskell. The declaration sets forth the cause of the injury as follows: “ And the plaintiffs say by reason of the acts and doings of the defendants, the erecting and building of said dam, and by reason of a large quantity of water accumulated therein, and by reason of the unskilful and negligent building of said dam, and by reason of suffering and permitting said dam to become decayed and rotten and out of repair and ruindus, on or about the third day of March last past the water in said dam broke through,” &c.
The mere fact of building the dam being laid out of the case, we come to the allegation of its being built unskilfully and negligently. Pratt would not be liable for this; for it was built by Haskell, under a contract by which he was to be the proprietor on certain terms. If he did the work unskilfully and negligently, the doctrine respondeat superior would not be applicable Pratt. Earle v. Hall, 2 Met. 353. Hilliwrd v. Richardson, 3 Gray, 349, 366. Linton v. Smith, 8 Gray, 147. Brackett v. Lubke, 4 Allen, 138.
There is, also, another reason why neither of them would be liable in this action. Pratt sold the property to George Haywood in June 1864, and left it the following December. When he left, the dam did not in any degree obstruct the flow of wate» *471through the culvert. It does not appear that it had ever, up to that time, been so obstructed as to do any private damage to the plaintiffs. This was not therefore such a case as that of Roswell v. Prior, 12 Mod. 635, where one erected a private nuisance on land, and then assigned the land with the nuisance existing upon it. Haskell had abandoned the premises still earlier; and neither of them could be liable for what might be unlawfully done at a subsequent time by later owners or occupants.
The jury were also rightly instructed as to the liability of the other three defendants, namely, “ that the plaintiffs were entitled to recover, if the jury should be satisfied that the dam was not originally constructed in such a manner and of such materials as ordinary prudence and skill required, having regard to the particular locality, the rise and capacity of the stream, its liability or otherwise to frequent or extraordinary freshets, and the amount of power intended to be derived from the dam when built, or if after its construction ri was not kept and maintained in such condition and repair as ordinary and reasonable prudence and care call for.” This instruction is correct, because, if the dam was thus defective, these defendants would be guilty of negligence in stopping the flow of the stream so as to fill such a dam with a pond of water, and thus the injury would have occurred by reason of their negligence.
The jury were further instructed that “ if there was no want of such judgment, care and prudence, either in the original construction or maintenance of the dam, the defendants were not liable; that, under the pleadings in this case, the question whether the injury was caused by the negligence or want of skill in the defendants or their agents in the management of the gate and flash-boards after the freshet commenced was not open in this action.”
This is also correct; for if the plaintiffs can recover, it must be upon the allegations in their writ, and in the writ there are no allegations of a private wrong to the plaintiffs, except such as sprung from the insufficiency of the dam arising from unskilfulness in -ts structure, or suffering it to get out of repair and go to decay. The jury having found for the defendants on these *472two points, the plaintiffs had made no allegation to' sustain the real merits of their case, even admitting that there was evidence sufficient to sustain the action on account of the acts of the defendants at or about the time of the freshet.
The jury having been correctly instructed on these points, there was no occasion to instruct them further in respect to the prayers for instructions which were presented by the plaintiffs.
Exceptions overruled.