Asa Hodges vs. George Hodges, 5 Met. 205

Hubbard, J. The defendant objects to the declaration in this case, that it does not charge a technical continuance of a nuisance, but is merely a count for the erection of a nuisance. There is a difference, and oftentimes a material one, between a count for erecting and creating a nuisance, and a count for the continuance of such nuisance. But these counts may be and often are joined in the same writ.

The declaration in the present action is not drawn with peculiar skill; but the same critical astuteness is not now applied to the detec "on of technical mistakes and variances in ¡ leadings as in former years, and our statutes have provided that writs, declarations and other proceedings, shall not be abated, arrested, quashed or reversed, for any circumstantial errors or mistakes, when the person and case may be rightly understood by the court. Rev. Sts. c. 100, § 21.

Now the declaration in this case avers that on the 20th day of May, and long before, and continually afterwards, up to the day of the date of the writ, the defendant had obstructed the brook, by means of a dam erected by him; by reason of which obstruction the water overflowed the plaintiff’s meadow, both summer and winter, all the time aforesaid, and thereby spoiled the same during the time aforesaid, &c.

In an action for erecting a nuisance, though the exact time of erection need not be averred in the declaration, yet the fact of the erection, on some given time, must be distinctly charged ; but in an action for continuing a nuisance, the time of its erec tion or creation need not be set forth ; as was determined long ago in the action of Westbourne v. Mordant, Cro. Eliz. 191, a case strongly resembling the present; and we think the injury, here complained of, is in fact for continuing the obstruction, and not for creating it: And we are of opinion that the action may be supported upon this declaration.

The defendant also contended that the award was a bar to the action. If this had been a suit for the erection of the nuisance, the award would be a good bar, because injuries to the land, preceding the submission, are embraced in it, by its terms. But we are satisfied, on looking at the submission and award, that a claim for damages was only made for flowing the demandant’s meadow up to the time of the submission, and not for gross damages, including any future injury for the further and lasting continuance of the nuisance, subsequent to the period of making the award.

And we are also of opinion, that under the authority of Webster v. Lee, 5 Mass. 334, parol evidence was properly admitted to show that the present claim was not submitted to the referees for their examination and award. See also Ravee v. Farmer, 4 T. R. 146. Seddon v. Tutop, 6 T. R. 607. Bailey v. Lechmere, 1 Esp. R. 377. Parker v. Thompson, 3 Pick 429. ' It has been also urged by the defendant, that if the plaintiff has any claim for damages, his remedy is under the mill act.

We think it was very properly submitted to the jury, whether the defendant had abandoned the intention of again using the dam and sluice way as a separate mill power, independent of the main dam : And they having found that he had abandoned such use of the same, and the defendant not having requested the evidence, upon which the question of law stated by him might properly arise, to be reported for our consideration, we think the plaintiff cannot be compelled to resort to the mill act for redress. French v. Braintree Manuf. Co. 23 Pick. 216.

In regard to the time for which the jury calculated the damages, viz. from the 20th of August, 1834, the date of the submission, to the 19th of May 1838, the commencement of this action, it is evidently too long and is founded on a mistake in taking the date of the submission for a starting point, instead of the date of the award, Oct. 1st 1834. But it seems unnecessary to set aside the verdict for the correction of this trifling mistake; and the plaintiff, on remitting one dollar of his damages, can have judgment for the difference.