This judgment being a bar to another personal action, the plaintiffs brought an assize of nuisance in the court of common pleas for Philadelphia county, to December term 1807; which, after an unsuccessful effort to remove the same by habeas corpus (1 Binn. 251), was finally removed to the supreme court, by certiorari, the court holding that they had jurisdiction, as judges of assize, and power to resummon the jury who had viewed the alleged nuisance (2 Binn. 192). The case came on for trial, at msiprius, before Bkackeniudoe, J., on the 26th of May, 1811, and after argument to the jury by Lewis, for the plaintiffs, and Bawle, for the defendants, (who contended that the action '• mid not lie against a devisee of the party by whom the nuisance was *65erected; and that the assize could only inquire into the plaintiff’s actual damages), the court delivered the following charge to the jury :

Brackenridge, Justice. — The proprietor of the soil through which a stream runs, cannot divert it from its natural bed, save within his own bounds; and if even within his own bounds, he diverts it, he must be answerable that it is brought back to its bed, before it passes the boundary below; nor could he divert it, within his own bounds, so as to waste it, and lessen the quantity that would have come to him below. He must rse his stream, so as not to diminish it to him to whom it is next to come. He cannot change its natural channel. The proprietor below has a right to the stream as it came 'o him by the usual supply of nature, so far as that no act of him above shall other-vise, than by a reasonable use, diminish it. The proprietor above cannot say, the stream is lessened, it is true, by the course I have given it, but it does you no damage; you have enough still.1 That answer will not suffice; it goes only to the qucmtum of the injury, and the aggravation of it. It is sufficient, if the quantity of the water is reduced, unreasonably, that would otherwise have descended to him that is below. What is against his consent, is a wrong. He must be the judge of what he wants; and whether the lessening is a help or a hurt. This is not ideal. The owner of the soil above may have it in his power maliciously to waste the water, by turning it where it would sink in part and disappear, or he might, to serve another, turn the stream through his ground, and give it a new channel. I take it, that an action on the case would lie for such a deprivation.

Be that as it may, the law is clear that the owner of the soil above has a right to the stream in its natural state; unincreased in depth by him below. That is, he has a right to the fall and current of the stream through his land, with the same descent at the boundary below, that it had in its natural state. The proprietor below cannot increase the depth of the stream above, by any impediment, so as to be justifiable. But he cannot increase the depth above, otherwise than by flooding some of the soil, making that a part of the channel which was not before.

In the application of this principle, it is true, as in the application of the principles of law in all cases, the maxim cl& minimis occurs; the law will not regard small things. But what is the meaning of this maxim ? It is, that the law will not force us to put on glasses to see the minimum. But if seen, it must be noticed. I will not say, that the throwing back the water a single line would force itself upon you, and compel redress. Bor it must be an excess that is visible to the naked eye; that is discernible to every vision that will call for the interposition of the law. This reduces it to the practicable in the affairs of men.

But admitting that there is even a line of flooding on the land of another, or swell of the water, by reason of an impediment of the current, and that it is ascertained to be so, how can I say, that it is not a trespass, and the subject of legal notice. Say, an increase that but begins to be such, yet if it is such, how can I get over it ? Give an inch, take an ell — where shall we stop? Apply these principles to the case before us, and it will be seen whether a trespass exists. According to the testimony of some of the witnesses, it would seem to be a trespass, not of lines, nor of inches: but of feet. The backwater not only goes to the mill, the distance of many perches, but it rises on the wheel three and one-half inches, so that the wheel wades, as the phrase is, and is impeded in a revolution. If one inch at the mill, what must be the overflow at the division line ? The how much, goes to the quantum of damages, the overflowing at all, goes to the trespass.

It has been alleged, that the swell at the mill is in part owing to rocks below, within the plaintiff’s own ground. That may be in part, but it is not wholly so.

As to the agreement that has been given in evidence, it goes to show the understanding of the parties at the time, both as to what might be an overflowing, and a compensation for it. This will be considered. The question nevertheless is still open, whether there actually was a raising of the dam in this case, to throw back the water *66and flood the soil of the plaintiffs. Nothing that has happened, by agreement, or otherwise, can bar the investigation.

I lay the legal questions out of the case. I reserve the points; though it would not seem to me at present, that there is a great deal in them. A devisee may be considered, as for some purposes, a transí cree, or alienee; but is so identified in his interest with that of the testator, that his situation may seem to be different from that of a purchaser, so as to be considered such an alienee that the writ would not lie against him, or that notice should be necessaiy. But in this case, there has been notice by action and otherwise: the Us pendens, the notoriety of the dispute; the defendant, in doing acts himself, adding to the nuisance and continuing it. But these matters will be considered in bank. The jury need not charge their minds with a consideration of these at present. I will reserve them for the consideration of the judges in term ; a mere matter of fact will at present be left to the jury; is there a trespass or nuisance, by the defendant, upon the land of the plaintiff, and how much the damages ?

Verdict for the plaintiffs, damages $533.33.1

See Miller v. Miller, 9 Penn. St. 74; Wheatley v. Chrisman, 24 Id. 298.

The record, pleadings and evidence in this case will be found in Braekenridge’s Law Miscellanies, 438-57.