## Facts

- Wheeler Martin owned and possessed upstream land on a stream and maintained a mill and dam with a waste gate.
- Daniel Bigelow owned and possessed downstream land on the same stream and operated a sawmill and dam there.
- Bigelow’s downstream mill operation predated Martin’s upstream mill by several years, but not long enough to establish a prescriptive right to the flow.
- Martin’s dam and mill reduced the water reaching Bigelow’s mill, diminishing Bigelow’s water power and mill usefulness.
- There was no evidence that Martin diverted the stream or wantonly wasted water.
- Bigelow entered Martin’s land and removed (split out and carried away) the waste gate from Martin’s dam to restore the stream’s “natural course” toward Bigelow’s mill.
- Martin sued Bigelow in trespass *quare clausum fregit* for the entry and removal of the waste gate.
- The trial court instructed the jury that if Bigelow’s mill was first in time and Bigelow was damaged by Martin’s obstruction, Martin could not recover for Bigelow’s removal of the gate.
- Martin sought a new trial based on exceptions to the trial court’s instruction.

## Issues

1. Whether the prior erection and use of a downstream mill gives that proprietor an exclusive right to the unimpaired flow of the stream against later upstream mills.
2. Whether a downstream proprietor, claiming injury from reduced flow, is legally justified in entering an upstream proprietor’s land and removing a structure from the upstream dam.

## Decision

- The Vermont Supreme Court held that prior mill erection and prior water use do not give the downstream proprietor an exclusive right to the undiminished flow against later upstream mills.
- The Court treated the downstream proprietor’s loss from an upstream mill’s non-diverting, non-wasteful use as *damnum absque injuria*.
- Because Bigelow lacked a right to compel maintenance of the prior flow, he had no privilege to enter Martin’s land and remove the waste gate.
- The trial court’s instruction was erroneous; Martin was entitled to a new trial.

## Legal Principles

- Priority in time in constructing and using a mill on a stream does not create an exclusive right to the stream’s unimpaired flow as against subsequent upstream riparian use.
- A riparian proprietor may make reasonable use of the stream that incidentally diminishes another riparian proprietor’s advantage, so long as the stream is not diverted and the water is not wantonly wasted.
- Economic harm from such lawful upstream use, without diversion or wanton waste, is *damnum absque injuria*.
- A downstream proprietor injured only in this manner has no legal justification for self-help entry onto the upstream proprietor’s land to dismantle the upstream works; such entry constitutes trespass.

## Conclusion

The court rejected a priority-based exclusive right to natural flow for earlier mill owners, treated non-diverting and non-wasteful upstream mill use as legally permissible despite downstream loss, and held that a downstream owner cannot resort to self-help trespass to restore the former flow.


Martin v. Bigelow, 2 Aik. 184 (Vt. 1827)