The facts stated in the plea are a sufficient bar to the action at common law, and the question is whether
But it is objected that the operation of the statutes, under this construction, will be inconvenient; that it will be impossible for the jury to assess suitable damages. It is true, it would be difficult in regard to future damages, but the same difficulty occurs in other cases under these statutes ; especially where the flowing is below the mill dam. The amount of damages will depend on the use to be made of the water, and on the times when it is to be drawn off; but it may be estimated from the damages which shall have been actuallv sustained. It is said also, that the jury cannot determine how far it will be necessary to flow the lands, and during what portions of the year. There may be a difficulty as to the time, but there is none in regard to the height of flowing. The jury might however find, that the mill owner shall not flow the lands in the season proper for making hay.1 But the inconveniences insisted on cannot be very great, as the assessment of damages &c. will be subject to alteration upon the application of the party thinking himself aggrieved.2 *We do not perceive that they are greater than in many other cases of
though they are not often so remote from each other as in this instance.
Replication adjudged sufficient.
1.
See Stowell v. Flagg, 11 Mass. R. (Rand’s ed.) 365, n. (a.)
2.
See Revised Stat. c. 116, § 4; Fiske v. Framingham Manufac. Co. 12 Pick. 69, 70.
1.
See Revised Stat. c. ! 16, § 18.
2.
See Revised Stat. c. 116, § 33.