11S BINNEY'S CASE.

be injured as the holder of an upper mill-site, by casting back the
water, and flooding his works, or diminishing his fall of water.
This, I conceive to be perfectly manifest from the description
given of an upper and a lower mill-site. But, to recur to the dia-
gram for illustration, the plaintiff alleges, in effect, that the dam
complained of is as at A, and being raised to 2, will divert the
whole of the water of the river from 1 to 5, and let it into the tide
at 7; by which his mill-site A. B. C. will be totally destroyed.

Taking this view of the subject, the plaintiff, according to his
own shewing, must be considered as the owner of the inner
mill-site; and the defendants of the outer one. And, supposing
them to be alike entitled to the use of the water, it is undeniably
true, that the defendants can have no right, so to divert it as to
diminish the value of the plaintiff's mill-site; much less to destroy
it. On adverting to the prodigious extent of the country drained
by the Potomac, above the point where this dam is to be placed,
it must strike every one, as very extraordinary, if true, that a dam,
four feet high across the river, at that point, should be sufficient to
divert the whole of its waters through a canal of only six feet in
depth, and twenty-five feet in width. But the fact is positively
denied. It is said, that not more than one-fifteenth part of the
waters of the river, at its most reduced summer volume, can be so
diverted by this dam. And, therefore, the fact, on which this part
of the plaintiff's complaint is grounded, being untrue, the complaint
itself is deprived of its only just foundation. For if the plaintiff's
mill-site, be, as he alleges, constituted of the situation A. B. C, and
he finds water, at the commencement of his head race in sufficient
abundance for all the purposes of his mill-site, he can have no pos-
sible cause of complaint; however high, or in whatever way the
projected dam across the river may be formed, (a)

But the plaintiff alleges, that his mill-site is likely to be depre-
ciated in value, almost to nothing, or totally destroyed by the unli-
mited rivalships of new mill-sites; which the defendants will create
by their projected dam across the river. Again recurring to the
diagram for illustration, this complaint is to this effect: The dam
A. 2. will enable the defendants to conduct the water of the river
from 1 to 5; and, consequently, all that space of land between that
head race and the river, below the plaintiff's mill-site A. B. C.

(a) Bealey v. Shaw, 6 East, 208; Palmer v. Mulligan, 3 Cake's Rep. 307; Beis-
sell v. Sholl, 4 Dall. 211.