— Isaiah Thomas, under whom both parties claim, was the owner of Martin stream, on both sides. He erected a dam across the stream, to create a reservoir and head of water, w Inch might be turned to beneficial purposes. On one side he had erected a saw mill, and on the other side a grist mill. The power thus raised was more than these mills required. But the unoccupied power, thus raised and appropriated, had a value, which was as much under the protection of the law, to the owner, as the banks through which the stream passed. It was capable of propelling other mills, which the owner might erect, and which may have been within his contemplation, when he built the dam, or it might have been sold to others, for a valuable consideration. If a stranger had inserted a flume in the dam, and had thus withdrawn a portion of the water, when called upon by the owner for this invasion of his rights, it would be no sufficient answer for him to prove, that the owner had still enough left to work his mills.
A riparian proprietor on one side, or above or below, may use the water, or avail himself of its momentum, and may for this purpose create a head of w'ater; provided he does not thereby impair the rights of other proprietors. If he thereby injure or destroy a privilege previously appropriated, he may be held answerable, although the mill or mills, depending on such privilege, may he out of repair, have gone to decay, or been destroyed by flood or fire, unless the same lias been abandoned by the owner. Hatch v. Dwight et al. 17 Mass. 289. There an action was sustained for impairing a water power, the actual enjoyment of which by the owner had been sometime suspended. It may admit of more question, whether an action could be maintained by the owner of a privilege, which had never been occupied, for the erection of a dam below, which may have impaired or destroyed its value. There are authorities which sanction the doctrine, that the first occupant thereby acquires exclusive rights, which cannot *410be affected by operations upon the stream above or below. Of this opinion was Parker C. J., by whom the opinion of the court was delivered, in the case before cited. At a subsequent period, Story J., in the case of Tyler al. v. Wilkinson & al. 4 Mason, 397, after an elaborate view of the authorities in England and in this country, maintains the opinion that such exclusive right is not sustained by occupancy alone, for a period short of twenty years. The weight of authority appears to be with Mr. Justice Story; but the case before us does not require a decision of this point. It is not the conflicting rights of proprietors, above or below, or upon opposite sides, that we are called upon to determine.
The question is, how far a party having no right of his own, can divert the water which the owner of the .Stream has already appropriated, provided enough is left for his immediate purposes, without being liable to the suit of the party injured. Upon this point we cannot entertain the least doubt. To suffer such an invasion of the rights of another, without redress, would be to put this species of property out of the protection of the law. Several of the cases cited for the defendant, may maintain the position they were adduced to support, that a party, through whose land water passes, who has sustained no damage from the use of it by another, can maintain no action therefor. We do not consider it necessary to go into a consideration of these cases, or to discuss the principles upon which they are founded, being satisfied that it is and must be a damage to a party, to abstract a water power, of which he is the owner, which he has raised and erected at his own expense, and which he is at liberty either to use or to sell.
The grist mill was sold to Means, under whom the defendant claims, with a restricted and qualified right as to the quantity of water which he might withdraw from the dam. All that was not thus conveyed was reserved by the grantor, to whose interest the plaintiff has succeeded. The gristmill being located on one side of the stream, and passing with the site by the deed, if there might have passed with it, by implication, the water to the thread of the stream, there is no room for such implication, where the right to the use of the water power is expressly limited by the deed. It was a valuable right, sufficient for the use of the mill *411conveyed, and to that extent the grantee was to have a preference over all other mills, depending on the same power. Beyond that he cannot be regarded as having any other right than a mere stranger. For any interference with the plaintiff’s dam, or the water therein, beyond what was expressly secured to him, his deed furnished him no protection. And we are clearly of opinion, that the case made out for the plaintiffs entitle them to judgment on their verdict, provided there is no legal objection to the evidence upon which it was founded, in regard to the admissibility of a portion of which, a question was raised at the trial, and which has been pressed in argument.
The gravamen in the plaintiffs’ writ is, that the defendant had withdrawn, and continued to withdraw, more water than he had a right to do. Whatever had a tendency to prove this fact, was competent evidence. Of this character was the proof that the flume had been extended, and other alterations made by the defendant’s grantor, by means of which, together with other changes made by himself, more water was withdrawn from the dam than was necessary to propel the mill, when it was conveyed. There was no attempt to charge the defendant with what was done by his grantor, or with damages for the use of the water in his time, but to show that an excess was taken beyond the quantity conveyed, it was proved first, that the passage, through which the water passed, had been enlarged, and whether that was done before or after the defendant purchased, it did not affect or enlarge his right; and that secondly, by extending the capacity of the mill, a greater water power was necessary to propel it. It does not appear to us that any evidence was received, which did not bear directly and substantially upon the issue to be tried. The jury were instructed*that the defendant was answerable only for the excess of water, which he had withdrawn ; and they have found only nominal damages.
Judgment on the verdict.