DAM. A construction of wood, stone, or other materials, made across a stream of water for the purpose of confining it; a mole¹.

2. The owner of a stream not navigable, may erect² a dam across it, and employ the water in any reasonable manner, either for his use or pleasure, so as not to destroy or render useless, materially diminish, or affect the application of the water by the proprietors³ below on the stream. He must not shut the gates of his dams and detain the water unreasonably⁴, nor let it off in unusual quantities to the annoyance⁵ of his neighbors. 4 Dall. 211; 3 Caines, 207; 13 Mass. 420; 3 Pick, 268; 2 N. H. Rep. 532; 17 John. 306; 3 John. Ch. Rep. 282; 3 Rawle, 256; 2 Conn. Rep. 584; 5 Pick. 199; 20 John. 90; 1 Pick. 180; 4 Id. 460; 2 Binn. 475; 14 Srrg. & Rawle, 71; Id. 9; 13 John. 212; 1 McCord, 580; 3 N. H. Rep. 321; 1 Halst. R. 1; 3 Kents Com. 354.

3. When one side of the stream is owned by one person and the other by another, neither, without the eonsent of the other, can build a dam which extends beyond the filum aqua, thread of the river, without committing a trespass⁶. Cro. Eliz. 269; 12 Mass. 211; Ang. on W. C. 14, 104, 141; vide Lois des Bat. P. 1, c. 3, s. 1, a. 3; Poth. Traite du Contrat de Societe, second app. 236; Hill. Ab. Index, h. t.; 7 Cowen, R. 266; 2 Watts⁷, R. 327; 3 Rawle, R. 90; 17 Mass. R. 289; 5 Pick. R. 175; 4 Mass. R. 401. Vide Inundation⁸.

DAMAGE, torts. The loss caused by one person to another, or to his property, either with the design of injuring him, with negligence⁹ and carelessness, or by inevitable¹⁰ accident.

2. He who has caused the damage is bound to repair it and, if he has done it maliciousiy, he may be. compelled to pay beyond the actual loss. When damage occurs by accident, without blame to anyone, the loss is borne by the owner of the thing injured; as, if a horse run away with his rider, without any fault of the latter, and injure the property of another person, the injury is the loss of the owner of the thing. When the damage happens by the act of God, or inevitable accident, as by tempest, earthquake or other natural cause, the loss must be borne by the owner. Vide Com. Dig. h. t.; Sayer on Damages.

3. Pothier defines damage (dommiges et interets) to be the loss which some one has sustained, and the gain which he has failed of making. Obl. n. 159.

DAMAGE FEASANT, torts. This is a corruption¹¹ of the French words faisant dommage, and signifies doing damage. This term is usually applied¹² to the injury which animals belonging to one person do upon the land of another, by feeding there, treading down his grass, corn, or other production of the earth. 3 Bl. Com. 6; Co. Litt. 142, 161; Com. Dig. Pleader, 3 M 26. By the common law, a distress¹³ of animals or things damage feasant is allowed. Cow. Inst. 230; Gilb. on Distress and Replevin, 21. It was also allowed by the ancient customs of France. 11 Toull. 402 Repertoire¹⁴ de Jurisprudence, Merlin, au mot Fourriere; 1 Fournel, Traits de Voisinage, au mot Abandon. Vide Animals.