The plaintiff brought his action on the case against the defendants, alleging that they, or those in whose place they stand, diverted the waters of the stream upon which his factory stands, so as greatly to impair its value.
The defendants deny this, and further claim, that they have done nothing but what they had right to do, under their charter, and the sanction of the commissioners under whose approval they claim to have acted.
It is not however claimed, that the commissioners ever examined any supposed damage to the plaintiff’s rights, or to those under whom he claims; or that either party has called upon them for that purpose; or that the subject has ever been in any way before them. And the defendant claims, that the commissioners were the only tribunal to settle the question.
Upon the opening of the case, we thought that it could not be distinguished in principle from the case of Hooker v. The New-Haven and Northampton Company, 15 Conn. R. 312. and notwithstanding the labour and ingenuity which has been displayed, we remain of the same opinion.
In both cases, a substantial injury was done to the property of the plaintiff, by the direct operation of the works of the defendants. In both cases, it was claimed to have been done under the authority of the charter, and with the approbation of the commissioners. It is true, the injury in the one case is to the land, in the other to the water; but this can make no difference in the result.
Interests in water, as well as in land, may be taken under this act; and both are equally the subjects of compensation. In neither case, had the commissioners expressly authorized a damage to the party complaining, or made any appraisal or estimate of such supposed injury. In both cases, therefore, unless the commissioners have authority to assess damages for past injuries, the plaintiff must be without redress, or sustain a common law action.
This court has already decided, that the charter, under which the defendants justify, does not show, that the General Assembly meant to give permission to this company to take away, or essentially impair, the rights of other persons, for which they have made no provision. 14 Conn. R. 260.
We also held, that the defendants could not voluntarily in*104jure or destroy the plaintiff’s land to protect their own property, without taking the land, or paying for the same, in the manner provided for making compensation under that act: and that where the company had not paid for land, they ought not to obtain the right to prevent the land-owner from enjoying his own property. 15 Conn. R. 317.
These questions go very far to settle the case before us. The defendants think, however, the cases are distinguishable. They say, that the act requiring a survey is not applicable to cases of this kind, but to lands only; and so they are not required to make a survey. Now, whether these waters were to be surveyed or not, yet if, as we have before decided, the legislature did not mean to take away the property of any one, without compensation, then there must be a mode in which the amount of compensation must be ascertained; and whether by a survey, or any other mode, is of little importance. If no provision is made, by the act, for compensation, and the plaintiff’s property is really affected, then we come to the question whether private property can be taken for such a use, without compensation; which has not been directly claimed.
But it is said, that the commissioners are the only persons who can settle this question of damages; in support of which is cited the case of Calking v. Baldwin, 4 Wend. 667.
That the legislature intended, that the company might have these questions settled by commissioners, when property was taken away, we do not doubt. But that they meant to leave a party remediless, when it had not been done, we do not believe.
The case cited from the state of New-York, we think, does not apply at all to this case. There, the act was a public act, relative to an improvement upon a public river; and the court place the decision upon that ground, not denying or overruling the case of Crittenden v. Wilson, 5 Cow. 165. in which they held, that where the act was private, and the object not public, the mode of redress given by statute was not exclusive, but the party might have his action at common law. So far as the authorities in New-York are to operate, we think they are in support of the claim of the plaintiff.
It was also claimed, by the defendants, that the forum being pointed out, it was as much the duty of the plaintiff as of the *105defendants to present his claim to the commissioners ; and if he has not done this, that he ought to be in no better situation than if it had been decided against him.
We think no authority will warrant this ; and that the true construction of this act, is, that commissioners may assess the damages ; but where no steps are taken to present the case before them, in the proper manner, the parties are left in the same situation as if no such authority was given ; and, of course, that the defendants must be responsible as at common law.
Another question has been started, whether there is now any such board of commissioners as can assess damages. It is said, that the old board are defunct ; and that in this respect, the new board have not the powers conferred upon the former board, and have not the power of assessing damages, except in a particular case.
We have not thought it necessary to decide that question ; because we are satisfied, that neither the old nor the new commissioners have any authority given them to assess damages for injuries arising from time to time ; but that the duty of the commissioners, is, to ascertain how far the rights of a person might be affected, in consequence of injury sustained by the works of the defendants, and to assess damages for the injury thus sustained. But there is nothing to show, that their doings were to be retrospective. These damages having already accrued, are not within the class of cases to be settled by commissioners. If so, it follows, that this is the plaintiff’s remedy, or that he has none.
Another question is now raised. It is said, the plaintiff claimed the injury to his works arose from the defendants raising their dam ; and that the defendants claimed the injury arose from the plaintiff’s negligence in not keeping his own dam in repair ; and that the defendants were justified under their charter, and claimed that the plaintiff must resort to the commissioners, if he had any claim. Upon that claim, it is said, the court should have charged the jury, that if the injury was occasioned by the plaintiff’s own negligence, in not repairing his dam, he could have no right to recover.
No request was made, by the defendants, of the court to do this. No one ever doubted or denied, that if the injury arose from the act of the plaintiff, he could not charge the *106defendant therefor. If it is meant to claim, that the injury arose in part from the defendants’ own act, and in part from the act of the plaintiff, and then the court should have instructed the jury, that the plaintiff could not recover ; the answer is, no such claim was made.
The defendants offered evidence to show, that the dam of the plaintiff was poor and leaky, and claimed that the injury arose from that fact, and not from the raising of the defendants’ dam ; and this, as a matter of fact, was presented to the jury. When they were told, that if the plaintiff had sustained a substantial injury from the works of the defendants, &c., this necessarily involved the enquiry whether the injury arose from the condition of the plaintiff’s dam : if it did, it could not have been a substantial injury from the act of the defendants.
The jury then must have found, that the injury to the plaintiff’s mill arose, not from his own act, or his own negligence, but that a substantial injury was done, by the defendants, to the plaintiff, for which they had no legal justification.
There ought not, then, to be a new trial.
In this opinion the other Judges concurred.New trial not to be granted.