The opinion of the court was delivered, by

The record before us raises but a single question: the correctness of the answer of the learned judge to the fourth point of the plaintiff below. That point he might have declined to answer altogether, for it asked among other things an instruction to the jury upon a question of fact. Waiving that, however, the judge did answer. Assuming that there had been a quiet enjoyment by' the plaintiff for a period of twenty-one years of his farm and island in a particular manner, it requested that the. jury should be charged that the defendant had no legal right to change the location of the bulk-head of his dam to the injury of the plaintiff, and that he had no right to locate the same on the plaintiff’s land, and if he did so change the location the plaintiff' was entitled to their verdict. The form of the action was case, and the damages laid in the declaration were exclusively for backing the water up the creek upon and flooding the plaintiff’s land, thereby causing the overflow and entire destruction of a fording of the plaintiff, and washing away the banks of the creek whereby he had lost a large portion of his land. Now in answer to the point the learned judge said: “ The importance of the change, if such be the evidence (namely, the change of the location of the bulkhead), depends wholly upon the inquiry: did it increase the flow of water upon the lands of the plaintiff, or in any manner produce new injury to the enjoyment of his rights ? If it did, the plaintiff is entitled to recover.” This answer was certainly accurate. Admitting the change of the bulk-head to have been a wrongful act, it was a direct injury, remediable by an action of trespass quare clausum fregit. In this action on the case the only question was whether it had been instrumental in producing the consequential damage complained of in the declaration. If it had, it mattered not whether the act was rightful or wrongful in itself. If it had been erected on the defendant’s own land, yet if it had so obstructed the water of the creek as to cause the plaintiff’s land to be overflowed beyond that which had been the case before, it *359would have been ground to recover damages in an action on the case. The entry on the land, the removal of earth, &c., however wrongful, could not have been the ground of recovery in this action. So far as the defendant had a right to a certain easement of water by means of his dam, the mere change of the location of the bulk-head (though if it was a trespass on the plaintiff’s land it might have subjected him to an action) was not an abandonment of his right to use that location for the necessary purposes of the full enjoyment of his right (namely, his right to the water-power created by the dam). Such change neither increased nor diminished the rights of the defendant to use or occupy the lands of the plaintiff. This is the part of the answer of which the plaintiff in error has particularly complained, but we think without reason. As applied to the form of the action we discover no error in it.

Judgment affirmed.