Monson and Brimfield Manufacturing Company versus Elbridge G. Fuller, 15 Pick. 554

The opinion of the Court was afterwards drawn up by Putnam J. By the St. 1824, c. 153, § 3, it is provided, that when any jury shall be summoned under the acts for the support and regulation of mills, “ to assess damages to any person, the jury may take into consideration, in their assessment, any other damage occasioned to such person, as well as the damage to the land overflowed, and in offset thereto (if any there be) any benefit which may result to the complainant by reason of the mill dam complained of.” This statute and

section seem to meet the very objection made to the proceedings and rulings of the sheriff. It might happen, that the present respondent received some damages which were consequential to the flowing of the land particularly described. It would have been better, undoubtedly, to set forth the claim to such consequential damages in the petition ; but the objection raised goes not to the form, but to the validity of such a claim.

There was no objection made by the petitioners, of any surprise in regard to the evidence offered, nor any desire expressed for a postponement for the purpose of procuring evidence to answer that which was produced by the other party. It is to the competency of such evidence, that the complainants object. And in regard to that, we all think that the ruling of the sheriff was right.

The land adjoining to that which was flowed, might be essentially injured, although it was not laid under water ; as if the water should percolate from the pond into the land adjoining, and cause it to produce grass less valuable in quantity and quality, than it would have done if the water had not been raised in the land adjoining.

And the owner might have sustained a damage in some other manner, beyond that which accrued from covering the land particularly described, with water ; which damage might well be a subject of compensation by the jury; as if he were cut off from the usual and convenient communication with other parts of his estate, for example. We all think, that this objection to the proceedings cannot prevail, and that the petition should be dismissed, with costs for the respondent.