pronounced the opinion of the Court. — It is provided by statute, that when a cause pending in court is referred, by agreement of the parties and a rule of court, the report of the referees shall be returned to the court granting the rule, and be allowed and accepted, unless sufficient cause, in the opinion of the court, shall he shoivn to the contrary. If allowed and accepted, the court is to render judgement upon the report, and award execution; but if not allowed and accepted, or no report be made, and the parties do not again agree to a reference, the cause stands open for trial at law. — (Comp. Siat.p. 81, s. 79.J As the court have power to accept or reject the report, any thing may be alleged against it, which would be a good ground for relief against an award of arbitrators at law or in equity, or would be sufficient, according to the English practice, to set aside an award, when the submission is made a rule of court. When a referee, under a rule of court, knowing what the law is, or laying it entirely out of his consideration, makes what he conceives under all the circumstances to be an equitable decision, it is no objection to the report, any more than it would be to an award of arbitrators, that in some particular point it is against law; and if the report is silent as to the grounds of the decision,no inquiry can be had into the reasons which influenced it. Therefore, a general report apparently good, will not be set aside without proof, either of misconduct in the referee, an excess of his powers, some palpable mistake in the report, or fraud in one of thé parties. But if the referee states all the circumstances of the case, and it appears that he has decided contrary to law, the report, if it appears that he meant to follow the law, will be set aside.—(Aubert vs. Maze, 2 Bos. and Pul. 371; Delver vs. Barnes, 1 Taunt. 47.) In Kent vs. Elstob, 3 East, 18, it was determined, that if an arbitrator, under a rule of reference, profess to decide upon the law, and it appears from the face of the award that he proceeded on a ground which canopt be supported in law, the court will set aside the award. It was observed by one of the judges, that the award, in such case, is wrong, on the arbitrator’s own principles and view of the subject ; for if he means to determine according to law and mistakes it, the award is not such as he intended it to be. In Chace vs. Westmore, *31513 East, 357, it was held, that if the question of law does not appear upon the face of the award, the court will not enter into the merits of the decision, unless the award is shown to be so notoriously against justice, and hisjduty as an arbitrator,that misconduct in the arbitrator can be inferred: but Le Blank, J. added, that where the question of law necessarily arises upon the face of the award, there the court must take notice of it. in the present case, the referee has stated in the report the facts and grounds on which lie founded his decision, and the circumstances appear to be stated specially for the opinion of the court. The referee, as the report states, considered that the plaintiff, in a legal point of view, was not entitled to recover; and as it appears that the referee intended to follow the law, and decide upon the legal rights of the parties, the question of law arising upon the facts stated is properly before us, and subject to revision.
It appears from the report, that the plaintiff owned a farm, of which he had been in possession more than forty years, through which an ancient stream, called Huntington river, passed; that the defendants, owning land below, through which the same stream passed, erected a dam, a few years since, across the stream on their own land, which flowed the water back on -the plaintiff’s land ; that this was a damage to the plaintiff, particularly in depriving him of a spring, which he had been accustomed to use for his family and watering his cattle; but in consideration of the value and importance of the defendants’ mills, and the injurious consequences which would result to -them from repeated actions, to which a recovery against them in this case would lead, the referee considered it a case of damnum absque injuria, and that the plaintiff, in law, could not support his action. The amount of the damage to the plaintiff is not stated ; but we' must necessarily infer that it was a substantia] injury, and not trifling or inconsiderable.
The general principle with respect to the rights of proprietors of lands through which a stream passes, is, that each has an equal right to the use of the water, in its natural course, without diminution or alteration; and neither has a right to use or obstruct die water to the prejudice of other proprietors, unless he has acquired a title to some exclusive enjoyment,by an actual appropriation'and «se of the water, in this state, for fifteen'years, in same particular manner. This principle, however, is subject to the qualification, that each proprietor may use and apply the water, while it runs .over .his own .land, to domestic, agricultural, and manufacturing *316purposes, provided he uses it in a reasonable manner, and so as to work no material injury or annoyance to others $ and a proprietor below can maintain no action for the damage he may inci-Gently suffer from such use or interruption of the water, if it is not detained unreasonably, or let off in unusual quantities so as to deprive him of the use of it. So a proprietor above can maintain no action for an obstruction of the water below him, unless he has sustained some actual damage. But if his land is thereby flooded, or the obstruction occasions á material injury to him, he may maintain an action on the case for the consequential damage. Without a grant, or-an uninterrupted enjoyment for fifteen years, a proprietor cannot obstruct the stream running through his land, and flow the water back on the land of the proprietor above, without being liable to an action. In the present case, the. plaintiff had a right to have the water flow, in its natural course, from his own land through the defendants’ land, without obstruction to his prejudice ; and according to all the authorities, as the flowing of the plaintiff’s land by the erection and continuance of the dam across the stream on the defendants’ land, was a material injury to the plaintiff, he was entitled to maintain his action, and recover i^the actual damages.—(Jackson vs. Mordant, Cro. Eliz. 112; Broome vs. Mordant, Cro. Eliz. 112; Prince vs. Bolton, 12 Mod. 131; Stowell vs. Flagg, 11 Mass. 364.) In Massachusetts, and some of the other states, acts have been passed, taking away the action at common law, and giving to the owners of mills the right to flow the adjoining lands, if necessary to the working of their mills, subject only to such damages as shall be ascertained by the particular process prescribed. If public policy require that encouragement should be given to the building of mills and man-ufactories, and the liability to frequent actions at common law will discourage the proprietors of mill seats in this state from building in places where they must overflow the land of others, it belongs to the legislature to interpose, and make such provision as policy, consistently with justice, may require. Until this is done, we cannot deny to a party the remedy given him by the common law.
Judgement reversed, and cause remanded to the county court for trial.