N. D. Hill vs. John Caverly, John Williams and Jos. Caverly, 7 N.H. 215

By the Court. Richardson, C. J. The injury of which the plaintiff complains, is, that the defendants, by means of a feeble and badly constructed dam, wrongfully and injuriously raised and kept up the water in the pond twelve feet higher than was lawful, from the 1st September, 1831, to the 14th March, 1832, by reason of which the water broke away the dam,- and did the damage stated in the declaration.

The damage is not alleged to have resulted from any defect in the dam, rendering it unfit to answer any lawful purpose for which it was erected, but from raising the water, by means of the dam, twelve feet higher than was lawful. The action is founded, then, not on any negligence of the. defendants, in the construction of the dam, but upon aniru-proper use of it between the 1st September, 1831, and the 14th March, 1832. Such being the nature of the action, it is clear it is not maintained by the evidence against Williams and Joseph Caverly.

They had no concern with the gates of the dam after the 2d December, 1829. John Caverly stands on different ground. From the 2d December, 1829, until the dam broke away, he acted as the agent of the Cocheco Company at the dam. But that company had the control and use of the water during the whole time ; and he had contracted with the Dover Company, under whom the Cocheco Company claimed the premises, and who had leased the saw-mill to him, to follow the directions of the lessors in every thing relating to the stoppage or flowyge of the water in the pond.

I He must, then, be considered as the mere servant of the 'Cocheco Company, acting in all he did under the immediate direction and.control of the company, or their agents. The question then, ⅛, whether the facts disclosed in the case render him liable ? Nothing is stated in the case which shows any want of right in the Cocheco company-to raise the water to. the height it was raised. If; the action can be sustained at all, it must be on the ground that it was imprudent and improper to raise such a head, of water with such a dam.

When a servant, by the command of his master, does an apparent wrong, both the master and the servant are liable. Btdler’s N. P. 47. And when a servant, in the absence of his master, went into an improper place with a coach and two ungovernable horses, in order to train them there, and the servant not being able to govern the horses, they ran upon an individual and wounded him — it was held, that both the master and the servant were liable. 2 Lev. 172, Michael vs. Alestree.

When a servant, by command of his master, hires hands to do work, and they do a wrong, the master, and not the servant who' hires the wrong doers, is liable. 6 D. & E. 411, Stone vs. Cartwright. A servant or deputy cannot be charged for mere liopfea-sance. 1 Chitty's Pl. 72 ; 12 Mod. 488. Thus, in England an under-sheriff 'is a mere .servant of the sheriff, and no action lies against the under-sheriff for a mere breach of duty. Cowper, 403 ; 5 N. H. R. 456. No action can be maintained against a servant, unless he can be considered as a ■ wrong doer.

He is never liable for any. negligence of his master. , If he aids or assists in . a wrongful act,; he is liable. 1 Wilson 328, Perkins.vs. Smith. . In this case, John Caverly shut the gate, and left it shut till the dam gave way. . The shutting of the gate was no wrongful act to anybody. The owners had a right to raise a head of water as high as the dam would safely bear. If the gate ought to have been raised sooner, that .was business of the owners, and not of John Caverly,: He had no authority to raise it, except when: directed so to do..

The ease discloses no wrongful act, no breach of duty, in John Caverly, no negligence which can render him liable to this plaintiff. Judgment for the defendants.