Page:Federal Reporter, 1st Series, Volume 4.djvu/197

 IIABON ». CLIFFOED. 183 �running of the mill, besides those expressly provided for in the contract, upon whom -wonld the burden fall ? I think upon Dodge, as the proprietor for the time being. �In Fisk T. Farmington Manufg Co. le Pick. 491, the de- fendants were owners of a cotton factory and mill power, and had purchased from the plaintiff the çight of drawing off the water from bis pond through bis land below. The defendant had made a -written contract with one Bird, by •which Bird was to run the mill one year, and to manufacture for the defendants cotton shirtings, from cotton to be fumished by them, delivered at Boston, and for which the company agreed to pay Bird three and a half cents per yard for the cloth Bo manufactured by him at the end of each month. The cot- ton was to be used prudently and with care by Bird, and the mill kept in good running order by and at his expense, except the main gearing, -which was to be repaired by the company if uecessary; the waste to be accounted for by Bird, or deliv- ered to the company. Bird, while running the mill, caused the water to be let off so rapidly as to overflow the plaintiff's meadow, and injure his hay and grass. The action for the damages so caused was brought against the company who owned the mill, and the court held that the effect of the con- tract was to give possession and control of the mill to Bird, and that the defendants were not liable. �This case is -very nearly allied in its facts to the one at bar, — more nearly so than any other in the books, — and we think it an authority in point. We are aware that since the triai of this case the same question bas been determined other- wise by the supreme court of Wisconsin, See Whitney v. Glif- ford, 46 Wis. 138. That case, depeuding on tho same state of facts, was pending in the circuit court for Portage county at the time this case was tried and depided in this court. After the hearing here, the other case was brought on for trial in the state court and the same decision rendered at the circuit as was made in this court. An appeal was taken, and pending the motion for a new trial in this case the supreme court made a decision reversing that of the circuit court; and iî it were a question of local law we should feel bound by ����