We learn from the report of the commissioners that the dam designed to be maintained by the defendants is such as not to occasion any flowage beyond the defendants' right to flow at the time the dam was built. I understand from the case, that although the dam is so constructed that it is capable of flowing the lands above it to a greater extent, still, that, by means of roll-ways, sluices, and gates, it is so managed that it does not, in fact, cause any greater flowage than the defendants' right, and that if at any time it has caused a greater flowage than that, such excess has been the result of accident. Now, under these circumstances, it is difficult to see how this proceeding could be maintained at all, for I suppose that the object and intention of the statute were, to provide some means by which the manufacturer could get the needed right to flow, against the will and without *Page 261 the consent of the owner of the land flowed, but not to compel the manufacturer to take what he does not want.
It does not appear from the report that these defendants desired or intended to flow any land which they had not a right to flow, or to obtain such right to flow in any other way than by negotiation; and it would be hard, and to all appearance unjust if the plaintiff could be allowed to force upon them the purchase of rights of flowage at an advance of fifty per cent. above the appraised value, when they, in fact, had no intention of putting these statutory powers in motion, or giving others an opportunity to do so.
With these views, it appears to me that the just construction of the statute requires that the flowage which the commissioners have a right to appraise, cannot go beyond that which the defendants' works, as maintained, are designed to effect, including accidental damage which the works so maintained have occasioned, and are liable to occasion. It certainly cannot be extended beyond this last-mentioned damage.
The defendants' dam might probably be so constructed as to furnish a very convenient measure of the flowage right, if the defendants have obtained, or may by this proceeding obtain it; but it is not the only measure. It will be for the commissioners to ascertain the necessary and unavoidable damage occasioned to the petitioner by the dam as maintained by the defendants; and the extent to which the defendants' right to flow shall be carried by the commissioners' appraisal must be indicated by some other permanent and sufficient monument.
If the defendants, by their future management of the dam by closing up the roll-ways and sluices, shall indicate an intention to extend their flowage beyond those monuments it will of course be open for the petitioner to proceed again under the statute for the further damage sustained. The case of Griffin v. Bartlett, 55 N.H. 119, and cases there cited, show that the measure of the right to flow is to be determined by the actual extent of the flowage, and not by the height of the dam.