The opinion of the court was delivered by
Royce, Ch. J.The matters presented for our consideration arise upon the report of the special master appointed to assess the damages on an injunction bond.
The dam and gates that the defendants were enjoined from removing upon the occasion of the execution of the bond were erected under a claim of right many years before the defendants acquired their title to the land upon which they were erected. In the spring of 1883 the defendants obtained their title and caused a notice to be served on the orator that they should remove said dam and gates and allow the water to flow, in its natural channel; and thereupon the orator procured an injunction to prevent the defendants from removing them.
*661It is not found that any attempt was made to procure a modification or dissolution of said injunction; but at the October Term of Supreme Court, 1884, the cause was heard upon demurrer to the bill and remanded with mandate that it be dismissed with costs; and the defendants then' caused said gates to be removed.
It is found that -the maintenance of said dam and gates was neither a benefit nor detriment to the defendants, and the right to maintain them was only valuable to the mill owners on the stream below where they were situate. The only actual damage claimed by the defendants is the rental value of the right to maintain said dam and gates during the continuance of the injunction.
It is evident from the notice given by the defendants and the fact that they removed the gates as soon as their right to do so had been determined, that they had no intention of maintaining said dam and gates, but rather to remove them and allow the water to flow in its natural channel.
Their ability to make the right valuable was wholly problematical or conjectural. The riparian owners on the stream had the undoubted right to have it flow unobstructed in its natural channel. Hence, before the defendants could obstruct or regulate its flow, and thus make the right valuable, it would become necessary to obtain the consent and cooperation of such owners.
The right had no appreciable rental value during the continuance of the injunction, and no damages are recoverable for being deprived of the right to use it during that time.
The defendants not having sustained any actual damage, are they entitled to nominal damages? Conceding that the orator was liable on account of his keeping up the dam and gates after the defendants obtained their title, the damage was merely nominal; and the bond in a court of equity should not be construed as security for such damages. The damages provided for in the condition of the bond are such *662as are real and substantial. It would be inequitable, considering what the nature of the controversy between the parties was, to treat what is found to have been done by the orator as such a breach of the condition, and by so doing compel him to pay the costs of this litigation.
The decree of the Court of Chancery is affirmed and cause remanded.