Opinion
Decided June, 1880.
An action may be maintained for nominal damages for the wrongful diversion of the water of a natural watercourse, by one whose legal right is invaded.[,] without proof of actual injury.
CASE, for diverting the water of a natural stream from the plaintiff's aqueduct. The defendant offered a brief statement alleging that the plaintiff had previously filed a bill in equity for an injunction against the defendant, based substantially on the facts now stated in his declaration, upon which an application for a temporary injunction had been denied after a full hearing of the facts before one of the justices of the court, and the equity suit had been entered "neither party," after the defendant had filed an answer denying the equity of the bill. No replication was filed, and no decree was ever entered up. The brief statement was rejected, and the defendant excepted. The defendant requested the following instructions to the jury, which the court declined to give, and the defendant excepted: "If the jury find that what Stone did was done from malice, still he is not liable unless his act caused actual damage to the plaintiff, and then only for the actual damages caused to the plaintiff, and the verdict in that case would settle nothing as to the legal rights of the parties." Verdict for the plaintiff.
Ladd Fletcher, for the defendant.
Ray, Drew Heywood, for the plaintiff.
The facts stated in the brief statement constituted no defence, and it was properly rejected. The proceedings in the bill in equity were immaterial. No decree was entered up. If the judge who heard the application for a temporary injunction denied it on the merits, it would not be a bar to a subsequent hearing on the bill, and it is no bar to this suit. The request for instructions, that the defendant was not liable unless his act caused actual damage to the plaintiff, was rightly refused. The plaintiff was entitled to a verdict for nominal damages upon proof of the infringement of his right, although no actual injury was shown. Tillotson v. Smith, 32 N.H. 90; Bassett v. Company, 28 N.H. 438; Woodman v. Tufts, 9 N.H. 88; Munroe v. Stickney, 48 Me. 462; Chaffee v. Pease, 10 Allen 537; Stowell v. Lincoln, 11 Gray 434.
Judgment on the verdict.
SMITH, J., did not sit: the others concurred.