proviso that said defendants may at all times take and use a sufficient quantity of the water for their domestic and culinary purposes and for watering their cattle. The decrees will also enjoin the defendants to take the water from said streams and apply it to its various uses upon said lands without unnecessary waste, and in the most economical manner consistent with its beneficial use, and return the surplus to the stream whence it was taken in like economical manner and without unnecessary waste.

The defendant E. Lytle answered, denying that he had ever diverted any water or that he threatened to do so, and there is no proof against him. The decree must therefore be in his favor for costs.

Decrees are to be drawn up in accordance with the views herein expressed, with costs in favor of plaintiff against the other defendants, to be taxed by the clerk, and apportioned by one of the judges of this court, so that each defendant shall be liable for the amount apportioned to him, and no more.

WEBB v. PORTLAND MANUFACTURING COMPANY.

(Circuit Court for Maine: 3 Sumner, 189–203. 1838.)

STATEMENT OF FACTS.- Bill in equity for an injunction by plaintiff to prevent the defendant from diverting a water-course from the plaintiff's mill, and for further relief. The facts necessary to an understanding of the case will appear in the opinion.

Opinion by STORY, J.

The question which has been argued upon the suggestion of the court is of vital importance in the cause; and, if decided in favor of the plaintiff, it supersedes many of the inquiries to which our attention must otherwise be directed. It is on this account that we thought it proper to be argued separately from the general merits of the cause.

The argument for the defendants, then, presents two distinct questions. The first is whether, to maintain the present suit, it is essential for the plaintiff to establish any actual damage. The second is whether, in point of law, a mill owner, having a right to a certain portion of the water of a stream for the use of his mill at a particular dam, has a right to draw off the same portion, or any less quantity, of the water, at a considerable distance above the dam, without the consent of the owners of other mills on the same dam. In connection with these questions the point will also incidentally arise, whether it makes any difference that such drawing off of the water above can be shown to be no sensible injury to the other mili owners on the lower dam.

As to the first question I can very well understand that no action lies in a case where there is damnum absque injuria, that is, where there is a damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie even in case of a wrong or violation of a right, unless it is followed by some perceptible damage, which can be established as a matter of fact; in other words, that injuria sine damno is not actionable. See The Mayor of Lynn, etc., v. Mayor of London, 4 T. R., 130, 141, 143, 144; Comyn's Dig., Action on the Case, B., 1 and 2.

§ 88. Every injury imports damage in the nature of it.

On the contrary, from my earliest reading, I have considered it laid up among the very elements of the common law that, wherever there is a wrong. there is a remedy to redress it; and that every injury imports damage in the

nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages. A fortiori, this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant; for then it assumes the character, not merely of a violation of a right tending to diminish its value, but it goes to the absolute destruction and extinguishment of it. Under such circumstances, unless the party injured can protect his right from such a violation by an action, it is plain that it may be lost or destroyed without any possible remedial redress. In my judgment the common law countenances no such inconsistency, not to call it by a stronger name.

89. Actual, perceptible damage is not indispensable as the foundation of an action, but an action may be maintained for nominal damages in vindication of a right.

Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no farther inquiry than whether there has been the violation of a right. If so, the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper to remunerate him.

So long ago as the great case of Ashby v. White, 2 Lord Raym., 938 (S. C., 6 Mon. R., 45; Holt, 524), the objection was put forth by some of the judges, and was answered by Lord Holt with his usual ability and clear learning; and his judgment was supported by the house of lords, and that of his brethern overturned. By the favor of an eminent judge, Lord Holt's opinion, apparently copied from his own manuscript, has been recently printed. In this last printed opinion (p. 14) Lord Holt says: "It is impossible to imagine any such thing as injuria sine damno. Every injury imports damage in the nature of it." S. P., 2 Ld. Raym., 955. And he cites many cases in support of his position. Among these is Turner v. Sterling, 2 Lev., 50 (S. C., 2 Vent. R., 25), where the plaintiff was a candidate for the office of bridgemaster of London bridge, and the lord mayor refused his demand of a poll; and it was determined that the action was maintainable for the refusal of the poll. Although it might have been that the plaintiff would not have been elected, the action was nevertheless maintainable; for the refusal was a violation of the plaintiff's right to be a candidate. So in the case cited, as from "23 Edward III., 18, title Defense" (it is a mistake in the MS., and should be 29 Edward III., 18, b; Fitz. Abridg., title Defense, pl. 5), and 11 Henry IV., 47, where the owner of a market, entitled to toll upon all cattle sold within the market, brought an action against the defendant for hindering a person from going to the market with the intent to sell a horse, it was, on the like ground, held maintainable; for though the horse might not have been sold, and no toll would have become due, yet the hindering the plaintiff from the possibility of having toll was such an inquiry as did import such damage, for which the plaintiff ought to recover. So in Hunt v. Dowman, Cro. Jac., 478 (S. C., 2 Roll., 21), where the lessor brought an action against the lessee for disturbing him from entering into the house leased, in order to view it, and to see whether any waste was committed; and it was held that the action well lay, though no waste was committed and no actual damage done; for the lessor had a right so to enter, and the hindering of him was an injury to that right, for which he might maintain an action. So Herring v. Finch, 2 Lev., 250, where it was held that a person entitled to vote, who was refused his

vote at an election, might well maintain an action therefor, although the candidate for whom he might have voted might not have been chosen; and the voter could not sustain any perceptible or actual damage by such refusal of his vote. The law gives the remedy in such a case; for there is a clear violation of the right. And this doctrine, as to a violation of the right to vote, is now incontrovertibly established; and yet it would be impracticable to show any temporal or actual damage thereby. See Harmer v. Tappenden, 1 East, 665; Drew v. Carleton, 1 East, 563, note; Kilham v. Ward, 2 Mass., 236; Lincoln v. Hapgood, 11 Mass., 350; 2 Viner, Abridg., Action, Case, N, c. pl. 3. In the same case of Ashby v. White, as reported by Lord Raymond (2 Lord Raym., 953), Lord Holt said: "If the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and, indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal." S. P., 6 Mod., 53.

The principles laid down by Lord Holt are so strongly commended, not only by authority, but by the common sense and common justice of mankind, that they seem absolutely, in a juridical view, incontrovertible. And they have been fully recognized in many other cases. The note of Mr. Sergeant Williams to Mellor v. Spateman, 1 Saund., 346a, note 2; Wells v. Watling, 2 W. Black., 1239, and the case of the Tunbridge Dippers, Weller v. Baker, 2 Wils., 414, are direct to the purpose. I am aware that some of the old cases inculcate a different doctrine, and perhaps are not reconcilable with that of Lord Holt. There are also some modern cases, which at first view seem to the contrary. But they are distinguishable from that now in judgment; and if they were not, Ego assentior Scævolæ. The case of Williams v. Morland, 2 B. & Cresw., 910, seems to have proceeded upon the ground that there was neither any damage nor any injury to the right of the plaintiff. Whether that case can be supported upon principle it is not now necessary to say. Some of the dicta in it have been subsequently impugned; and the general reasoning of the judges seems to admit that, if any right of the plaintiff had been violated, the action would have lain. The case of Jackson v. Pesked, 1 M. & Selw., 235, turned upon the supposed defects of the declaration as applicable to a mere reversionary interest, it not stating any act done to the prejudice of the reversionary interest. I do not stop to inquire whether there was not an overnicety in the application of the technical principles of pleading to that case; although, notwithstanding the elaborate opinion of Lord Ellenborough, one might be inclined to pause upon it. The case of Young r. Spencer, 10 B. & Cresw., 145, turned also upon the point whether any injury was done to a reversionary interest. I confess myself better pleased with the ruling of the learned judge (Mr. Justice Bayley) at the trial than with the decision of the court in granting a new trial. But the court admitted that if there was any injury to the reversionary right the action would lie; and although there might be no actual damage proved, yet if anything done by the tenant would destroy the evidence of title the action was maintainable. A fortiori, the action must have been held maintainable if the act done went to destroy the existing right or to found an adverse right.

On the other hand, Margetti v. Williams, 1 B. & Adol., 415, goes the whole length of Lord Holt's doctrine; for there the plaintiff recovered, notwithstanding no actual damage was proved at the trial; and Mr. Justice Taunton on that occasion cited many authorities to show that where a wrong is done, by

which the right of the party may be injured, it is a good cause of action, although no actual damage be sustained. In Hodson v. Todd, 4 T. R., 71, 73, the court decided the case upon the very distinction which is most material to the present case, that if a commoner might not maintain an action for an injury, however small, to his right, a mere wrong-doer might, by repeated torts, in the course of time establish evidence of a right of common. The same principle was afterwards recognized by Mr. Justice Grose in Pindar v. Wadsworth, 2 East, 162. But the case of Bower v. Hill, 1 Bing. New Cases, 549, fully sustains the doctrine for which I contend; and, indeed, a stronger case of its application cannot well be imagined. There the court held that a permanent obstruction to a navigable drain of the plaintiff's, though choked up with mud for sixteen years, was actionable, although the plaintiff received no immediate damage thereby; for if acquiesced in for twenty years it would become evidence of a renunciation and abandonment of the right of way. The case of Blanchard v. Baker, 8 Greenl., 253, 268, recognizes the same doctrine in the most full and satisfactory manner, and is directly in point; for it was a case for diverting water from the plaintiff's mill. I should be sorry to have it supposed, for a moment, that Tyler v. Wilkinson, 4 Mason, 397, imported a different doctrine. On the contrary, I have always considered it as proceeding upon the same doctrine.

Upon the whole, without going further into an examination of the authorities on this subject, my judgment is that whenever there is a clear violation of a right it is not necessary in an action of this sort to show actual damage; that every violation imports damage; and, if no other be proved, the plaintiff is entitled to a verdict for nominal damages. And, a fortiori, that this doctrine applies whenever the act done is of such a nature as that by its repetition or continuance it may become the foundation or evidence of an adverse right. See, also, Mason v. Hill, 3 Barn. & Adolph., 304; S. C., 5 Barn. & Adolph., 1.

§ 90. Even though an action at law was not maintainable where no actual damages could be proved, equity would interfere by writ of injunction to protect the right from violation.

But if the doctrine were otherwise, and no action were maintainable at law without proof of actual damage, that would furnish no ground why a court of equity should not interfere and protect such a right from violation and invasion; for, in a great variety of cases, the very ground of the interposition of a court of equity is that the injury done is irremediable at law, and that the right can only be permanently preserved or perpetuated by the powers of a court of equity. And one of the most ordinary processes to accomplish this end is by a writ of injunction, the nature and efficacy of which for such purpose I need not state, as the elementary treatises fully expound them. See Eden on Injunctions; 2 Story on Equity Jurisp., ch. 23, § 86 to § 959; Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick., 212.

91. A court of equity will by writ of injunction protect a right, the violation of which would, by lapse of time, become the foundation of an adverse right. If, then, the diversion of water complained of in the present case is a violation of the right of the plaintiffs, and may permanently injure that right, and become, by lapse of time, the foundation of an adverse right in the defendant, I know of no more fit case for the interposition of a court of equity by way of injunction to restrain the defendants from such an injurious act. If there be a remedy for the plaintiffs at law for damages, still that remedy is inadequate

to prevent and redress the mischief. If there be no such remedy at law, then, a fortiori, a court of equity ought to give its aid to vindicate and perpetuate the right of the plaintiffs.

§ 92. In case of mere trespass remediable at law equity will not interfere.

A court of equity will not indeed entertain a bill for an injunction in case of a mere trespass fully remediable at law. But if it might occasion irreparable mischief, or permanent injury, or destroy a right, that is the appropriate case for such a bill. See 2 Story on Equity Jurisp., §§ 926-928, and the cases there cited; Jerome v. Ross, 7 John. Ch., 315; Van Bergen v. Van Bergen, 3 John. Ch., 282; Newburgh Turnpike Co. v. Miller, 5 John. Ch., 101; Gardner v. Village of Newburgh, 2 John. Ch., 162.

§ 93. The question whether the right of the plaintiff as mill owner on the lower dam is violated by the diversion of the water by defendants considered.

Let us come then to the only remaining question in the cause, and that is, whether any right of the plaintiff as mill owner on the lower dam is or will be violated by the diversion of the water by the canal of the defendants. And here it does not seem to me that, upon the present state of the law, there is any real ground for controversy, although there were formerly many vexed questions and much contrariety of opinion. The true doctrine is laid down in Wright v. Howard, 1 Sim. & Stu., 190, by Sir John Leach, in regard to riparian proprietors, and his opinion has since been deliberately adopted by the king's bench. Mason v. Hill, 3 Barn. & Adolph., 304; S. C., 5 Barn. & Adolph., 1. See, also, Bealey v. Shaw, 6 East, 208. "Prima facie," says that learned judge, "the proprietor of each bank of a stream is the proprietor of half the land covered by the stream; but there is no property in the water." § 94. The rights of the different proprietors stated.

Every proprietor has an equal right to use the water which flows in the stream; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors who may be affected by his operations; no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor who claims a right, either to throw the water back above or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years, which term of twenty years is now adopted upon a principle of general convenience, as affording conclusive presumption of a grant." The same doctrine was fully recognized and acted upon in the case of Tyler v. Wilkinson, 4 Mason, 397, 400, 401, 402; and also in the case of Blanchard v. Baker, 8 Greenl., 253, 266.

95. The doctrine recognized in the case of Blanchard v. Baker as to the right of proprietors of water rights.

In the latter case the learned judge, Mr. Justice Weston, who delivered the opinion of the court, used the following emphatic language: "The right to the use of a stream is incident or appurtenant to the land through which it passes. It is an ancient and well-established principle that it cannot be lawfully diverted unless it is returned again to its accustomed channel before it passes the land of a proprietor below. Running water is not susceptible of an appropriation which will justify the diversion or unreasonable detention of it. The proprietor of the water-course has a right to avail himself of its