Stores, J.
We consider the question which has been first argued before us, as to the correctness of the charge of the court below, on the claim of the defendant of a prescriptive right to keep the water of the stream raised to the height complained of, by the plaintiff, as being settled in the case of Branch v. Doane, which was decided by this court, at its last term in this county. 17 Conn. R. 402. So far as it respects that question, we are unable to perceive, that the present case differs from that, in any essential, or scarcely even in any unimportant circumstance ; or that the charge of the court below, in the present case, on this point, is not precisely conformable to the decision in that. With that decision we are entirely satisfied, for the reasons there given.
[240]*240The remaining question respects the correctness of the -other part of the charge to the jury, in whicl| they were instructed, that if from the evidence they should find that the dam of the defendant had thrown the water back upon the wheels of the plaintiffs saw-mill, as he claimed, the plaintiff was entitled to recover, unless the defendant had proved a right or license so to do. The defendant, on the ground that the plaintiff had no right to use the water for the purpose of working his saw-mill, except when the water was running over the dam above his mill, and that he had offered no evidence that the water was running over said dam, during any portion of the time when he claimed that his mill had been obstructed, by the back-water from the defendant’s dam, claimed, that the jury should be instructed, that the plaintiff could not recover in this action. This claim of the defendant affirmed, what he now endeavours to maintain, that the plaintiff was not entitled to recover, without showing., that the defendant had violated the particular right which the plaintiff acquired to the use of the water, by the deed to himself, which he introduced in evidence, from Thomas Branch; that that deed limited the right of the plaintiff to use the water to times when it run over the dam of said Thomas ; and that it was necessary for the plaintiff, in order to recover, to prove, not only a violation of that right, but that he suffered some actual sensible, specific damage, by such violation. The proposition involved in the charge as given, is, that the facts conceded in the case showed such a right on ihe part of the plaintiff to the use of the water, as against the defendant, that the setting back of the water, by the latter, upon the plaintiff’s saw-mill, constituted a violation of that right, in the absence of a right or license shown by the defendant to do so ; (neither of which was found by the jury;) and that it was sufficient for the plaintiff, in order to entitle himself to a recovery, to show such violation, without proving that he sustained any specific, actual damage therefrom. The facts thus conceded were, that the plaintiff, in 1798, received from Thomas Branch the above-mentioned conveyance of the premises of the plaintiff; and that from the time of its execution to the commencement of this suit, a period of more than forty-five years, the plaintiff had used and occupied said premises, and operated his mills, by the water of said stream.
[241]*241We do not consider it necessary to determine the construction of the deed from Thomas Branch, because, conceding, for the present purpose, that the right to the use of Ae water acquired by the plaintiff under it, was such a qualified one only as the defendant claims, and also that the plaintiff in this case is limited to a recovery for the violation of that particular right, we are, in the first place, of opinion, that the setting back of the water, by the defendant, permanently, by means of a dam, in the manner claimed by the plaintiff, constituted a violation of that right, inasmuch as it was the exercise and assertion of a claim adverse to and inconsistent with the plaintiff’s right, which, if continued for the period of fifteen years, would ripen into and confer on the defendant a prescriptive right to set back the water, and thus destroy the right of the plaintiff The right of the plaintiff according to the construction given to his deed by the defendant, was a permanent one to the use of the water where it was, in a certain state, in which, by the laws of nature, it must frequently be, rather than an accidental right, as it has been termed by the defendant’s counsel. It is therefore certain, that a dam, which should permanently set back the water upon the plaintiff’s mill, would prevent the enjoyment of that right by him. And there was nothing in the manner in which the acts of the defendant were done, which, in "any degree, qualified the claim of which they were evidence, or to show that they were done in subservience to, or with a recognition of, the right of the plaintiff. It clearly was not necessary that the plaintiff should be in the actual exercise of his right, and the application of it to any specific purpose, during the period of time when the water was set back, by the defendant, in order to prevent the acquisition of an adverse right by the defendant; and it will scarcely be claimed, that such adverse right would not be acquired, by a continuous use of fifteen years, merely because, during a few days, within that period, the water did not flow over the dam above the plaintiff’s works. The effect of the acts of the defendant upon the rights of the plaintiff depends on the character of those acts and the claim with which they were accompanied, and not upon the fact whether, when those acts were done, the plaintiff was in the actual exercise of his right, by applying it to any beneficial purpose ; although the circumstance that the plaintiff, when the injury [242]*242was committed, was not thus in the actual exercise of it, is proper to be taken into consideration in estimating his damages, respecting which there is no question before us. The acts of the defendant being therefore a violation of the rights of the plaintiff, was a legal injury to him, for which he may recover, without showing that he thereby suffered any specific or particular damage. This principle was fully settled, in the recent case of Parker v. Griswold, 17 Conn, R. 288. which is applicable here, and sanctions the charge of the court below, so far as it respects this point.
We think, however, in the second place, that the plaintiff was not .restricted to a right of recovery merely for a violation of the right conferred by the deed from Thomas Branch, but that he was at liberty to avail himself of any other title to recover, which he may have established by his evidence. He was not thus restricted, by the declaration, nor by the mere adduction of that deed, as a part of his evidence of title : and although he might, on the trial, have placed his claim to recover on such a specific and narrow ground, as to have been precluded from availing himself of one more extensive, it does not appear that he claimed to recover, either exclusively, or at all, on the ground of the right acquired by the deed, or that he did not claim to recover on the ground of his possession, or by virtue of an unqualified right to the use of the water acquired by prescription. The evidence introduced by him is consistent with either of these claims ; and if it proved a title broader than that conferred by the deed, we know of no principle which precluded him from claiming a recovery upon it.
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Stores, J.
We consider the question which has been first argued before us, as to the correctness of the charge of the court below, on the claim of the defendant of a prescriptive right to keep the water of the stream raised to the height complained of, by the plaintiff, as being settled in the case of Branch v. Doane, which was decided by this court, at its last term in this county. 17 Conn. R. 402. So far as it respects that question, we are unable to perceive, that the present case differs from that, in any essential, or scarcely even in any unimportant circumstance ; or that the charge of the court below, in the present case, on this point, is not precisely conformable to the decision in that. With that decision we are entirely satisfied, for the reasons there given.
[240]*240The remaining question respects the correctness of the -other part of the charge to the jury, in whicl| they were instructed, that if from the evidence they should find that the dam of the defendant had thrown the water back upon the wheels of the plaintiffs saw-mill, as he claimed, the plaintiff was entitled to recover, unless the defendant had proved a right or license so to do. The defendant, on the ground that the plaintiff had no right to use the water for the purpose of working his saw-mill, except when the water was running over the dam above his mill, and that he had offered no evidence that the water was running over said dam, during any portion of the time when he claimed that his mill had been obstructed, by the back-water from the defendant’s dam, claimed, that the jury should be instructed, that the plaintiff could not recover in this action. This claim of the defendant affirmed, what he now endeavours to maintain, that the plaintiff was not entitled to recover, without showing., that the defendant had violated the particular right which the plaintiff acquired to the use of the water, by the deed to himself, which he introduced in evidence, from Thomas Branch; that that deed limited the right of the plaintiff to use the water to times when it run over the dam of said Thomas ; and that it was necessary for the plaintiff, in order to recover, to prove, not only a violation of that right, but that he suffered some actual sensible, specific damage, by such violation. The proposition involved in the charge as given, is, that the facts conceded in the case showed such a right on ihe part of the plaintiff to the use of the water, as against the defendant, that the setting back of the water, by the latter, upon the plaintiff’s saw-mill, constituted a violation of that right, in the absence of a right or license shown by the defendant to do so ; (neither of which was found by the jury;) and that it was sufficient for the plaintiff, in order to entitle himself to a recovery, to show such violation, without proving that he sustained any specific, actual damage therefrom. The facts thus conceded were, that the plaintiff, in 1798, received from Thomas Branch the above-mentioned conveyance of the premises of the plaintiff; and that from the time of its execution to the commencement of this suit, a period of more than forty-five years, the plaintiff had used and occupied said premises, and operated his mills, by the water of said stream.
[241]*241We do not consider it necessary to determine the construction of the deed from Thomas Branch, because, conceding, for the present purpose, that the right to the use of Ae water acquired by the plaintiff under it, was such a qualified one only as the defendant claims, and also that the plaintiff in this case is limited to a recovery for the violation of that particular right, we are, in the first place, of opinion, that the setting back of the water, by the defendant, permanently, by means of a dam, in the manner claimed by the plaintiff, constituted a violation of that right, inasmuch as it was the exercise and assertion of a claim adverse to and inconsistent with the plaintiff’s right, which, if continued for the period of fifteen years, would ripen into and confer on the defendant a prescriptive right to set back the water, and thus destroy the right of the plaintiff The right of the plaintiff according to the construction given to his deed by the defendant, was a permanent one to the use of the water where it was, in a certain state, in which, by the laws of nature, it must frequently be, rather than an accidental right, as it has been termed by the defendant’s counsel. It is therefore certain, that a dam, which should permanently set back the water upon the plaintiff’s mill, would prevent the enjoyment of that right by him. And there was nothing in the manner in which the acts of the defendant were done, which, in "any degree, qualified the claim of which they were evidence, or to show that they were done in subservience to, or with a recognition of, the right of the plaintiff. It clearly was not necessary that the plaintiff should be in the actual exercise of his right, and the application of it to any specific purpose, during the period of time when the water was set back, by the defendant, in order to prevent the acquisition of an adverse right by the defendant; and it will scarcely be claimed, that such adverse right would not be acquired, by a continuous use of fifteen years, merely because, during a few days, within that period, the water did not flow over the dam above the plaintiff’s works. The effect of the acts of the defendant upon the rights of the plaintiff depends on the character of those acts and the claim with which they were accompanied, and not upon the fact whether, when those acts were done, the plaintiff was in the actual exercise of his right, by applying it to any beneficial purpose ; although the circumstance that the plaintiff, when the injury [242]*242was committed, was not thus in the actual exercise of it, is proper to be taken into consideration in estimating his damages, respecting which there is no question before us. The acts of the defendant being therefore a violation of the rights of the plaintiff, was a legal injury to him, for which he may recover, without showing that he thereby suffered any specific or particular damage. This principle was fully settled, in the recent case of Parker v. Griswold, 17 Conn, R. 288. which is applicable here, and sanctions the charge of the court below, so far as it respects this point.
We think, however, in the second place, that the plaintiff was not .restricted to a right of recovery merely for a violation of the right conferred by the deed from Thomas Branch, but that he was at liberty to avail himself of any other title to recover, which he may have established by his evidence. He was not thus restricted, by the declaration, nor by the mere adduction of that deed, as a part of his evidence of title : and although he might, on the trial, have placed his claim to recover on such a specific and narrow ground, as to have been precluded from availing himself of one more extensive, it does not appear that he claimed to recover, either exclusively, or at all, on the ground of the right acquired by the deed, or that he did not claim to recover on the ground of his possession, or by virtue of an unqualified right to the use of the water acquired by prescription. The evidence introduced by him is consistent with either of these claims ; and if it proved a title broader than that conferred by the deed, we know of no principle which precluded him from claiming a recovery upon it. This being the case, we are further of opinion, that the posses-sory interest of the plaintiff shown on the trial, constituted a sufficient title, as against the defendant, to justify the verdict. It was conceded, that, during the time of the commission of the acts complained of, and for the period of about forty years next previous thereto, the plaintiff had been in the occupation of the premises, and in the peaceable enjoyment of the water of the stream, for the purpose of working his mills. Whether the plaintiff, when those acts were committed by the defendant, was interfering with the rights of Thomas Branch, by using the water, when it did not run over his dam, is an en-quiry, which, we think, it is not competent for the defendant here to make. He claims no right, in this case, under Thomas [243]*243Branch, and is, therefore, as to the plaintiff',a mere wrong-doer. And no principle is better settled, than that as against a_ wrong-doer, actual possession, in an action of this description, is a sufficient title for the plaintiff. Saund. Pl. & Ev. 81. 689. Leigh’s N. P. 584. Twiss v. Baldwin, 9 Conn. R. 291. 302. Anon. Cro. Car. 499. Graham v. Peat, 1 East 244. 1 Chitt. Pl. 379. (9th Am. ed.)
Justice and policy both strongly require, that a bare tort-feasor, who has invaded the quiet possession of another, should not be allowed to shield himself under the title of a third person, between whom and himself there is no privity nor connexion. It was therefore settled in Chambers v. Donaldson, 11 East’s R. 66. that in an action of trespass quare clausum, fregit, the defendant cannot justify under the title of one to whom he is a stranger; and therefore, that if the defendant in such suit pleads soil and freehold in another, by whose command lie justifies the trespass, such command may be traversed by the plaintiff; thus exploding the doctrine which had been supposed previously to prevail on that point, and carrying out, in its fullest extent, the principle established in Graham v. Peat, 1 East’s R. 244. that a bare possession in that action is sufficient to maintain trespass against a wrongdoer. Lord Ellenborough says : “ Unless the command be traversable, it will be sufficient for a mere wrong-doer, who has invaded the quiet possession of the plaintiff, to plead title in another, and an authority from him; although that other himself did not question the plaintiff’s possession. Nay, the argument might be pushed further, and it might be contended, that the same defence could be set up against a plaintiff, who had been in possession for twenty years; and this monstrous consequence would ensue, that the wrong-doer would protect himself under a title which the party himself could not assert in any possessory action.” But since it has been settled, as in Graham v. Peat, 1 East 246. and Harker v. Birkbeck, 3 Burr. 1563. that trespass may be maintained, by a person in possession against a wrong-doer, we are called upon to “ strip the wrong-doer of his shield.” The same principle was adopted, in First Parish in Shrewsbury v. Smith, 14 Pick. 297. where Shaw, Ch. J., in giving the opinion of the court, says: “ If a lawful owner, in whom the legal title remains, upon considerations of propriety, equity and conscience [244]*244chooses to acquiesce, and permit the party in possession to retain that possession, notwithstanding any defect of title, by what rule of law, of equity or sound policy, can a mere stranger be allowed to interfere, and by his own act, violate the actual and peaceable possession of another, and thereby compel him to disclose a title, in the validity or invalidity of which such stranger has no interest ?” These reasons, thus forcibly expressed, most fully apply to the present case.
The superior court should not be advised to grant a new trial.
In this opinion the other Judges concurred.
New trial not to be granted.