Pilegar, J.,
delivered the opinion of the court.
John W. Eison, trustee, holding the legal title to certain mill property on the Eivanna river, in Pluvanna county, brought an action of trespass on the case, in the Circuit Court for said county, against the Chesapeake and Ohio Eailway Company, claiming damages for the diversion of the water from the mill, and for the failure of the company to supply water to the mill. He recovered a verdict and judgment for $575, and the case is here on a writ of error to that judgment.
Only an amended declaration appears in the record here. It contains four counts. The first and second, with unimportant differences, allege the plaintiff’s ownership of the property, right to the use of the water of the .river for his mill, works, and premises, and that the defendant unlawfully diverted the same, so that the plaintiff was deprived of the use and benefit of his property.
The third count alleges the plaintiff’s ownership of the property, that the right to use the water of the river for the mill was acquired in the year 1810 by regular condemnation proceeedings in the County Court of Pluvanna, under which it had been dammed up so that it furnished sufficient power for the mill, and [24]*24that it had been used for that purpose. It also alleges that the James River and Kanawha Company was duly authorized to acquire, by condemnation proceedings, the land necessary for the construction of its canals and abutments for its dams; that by the act of March 19, 1836, it was provided that the report of the assessors in such proceedings and the judgment thereon should not be a bar to the recovery of damages for any injury not foreseen and estimated by the assessors, and accruing after the date of their report; 'that the James River and Kanawha Company afterwards “ acquired by condemnation proceedings the land necessary for an abutment to a dam above the mill, but below the dam of the said mill, and also acquired by condemnation proceedings land necessary for a canal, to be constructed by said company, to be supplied by the dam proposed to be erected by said company on the site aforesaid.” It also alleges that the proposed dam was erected, and the canal cut, so as to connect with the dam, and that thereby, the dam which had supplied water to the mill was destroyed; “ but the said company, in lieu and instead thereof, made a new mill-race from its said dam to the aforesaid mill, by means whereof the mill was to be and was,” until the grievances complained of, supplied with water; that the assessors did not foresee or estimate any damages for the contraction of the works of the company, and that there would have been none if the company had kept its dam in good repair and free from breaks and leaks.
It then alleges “that by reason of the premises the plaintiff acquired, and has the right to, the benefit of the water from the said dam which ought to, and, until the commission of the grievances herein complained of did, of right run and flow from the said dam through the mill-race so constructed as aforesaid by the said James River and Kanawha Company, into the said mill;” and further alleged that the James River and Kanawha Company, and the defendant, as its successor in title and obligation, “ was, and still is, bound to provide that the said dam [25]*25should, be kept in good repair, free from breaks, leaks, etc., and by other means to provide so that the water should not be diverted from the mill.”
It then alleges that the defendant negligently, wrongfully, etc., “'caused, suffered and permitted the said dam to be, and continue, in bad repair, with many breaks, holes therein, etc., and wrongfully, unlawfully and negligently turned and diverted * * * large quantities of the water from the stream and water course out of and away from the mill through the breaks, •holes, etc., in said dam, and-through the canal aforesaid,” and thereby deprived the plaintiff of sufficient water to run his mill.
The cause of action alleged in this count is that, by the substitution of the new race for the old one, the plaintiff became entitled to such water as ran through the new race, and the James River and Kanawha Company, and its successors, became bound to keep up the new dam so that water would be supplied through the new race, and that this duty had not been performed. It is true that this count alleges that water was diverted through the canal, as well as through -the leaks in the dam, but this seems to be alleged as one of the reasons why the water was not kept in the new race, rather than as an independent wrong.
The fourth count alleges the plaintiff’s ownership of the mill, its construction prior to 1836, and the construction at the same time of a dam by which the necessary water was supplied to the mill, the condemnation by the James River and Kanawha Company of a portion of the mill tract for the abutment of a dam, and for a canal; that the company’s dam was so constructed as to submerge and render useless the old mill dam, and “that, in consideration of the premises, it was, at the time of said condemnation, agreed and understood, between the James River and Kanawha Company and the owners of said mill, that the said company, its successors and assigns, would and should be bound to perpetually thereafter furnish to the owners of the said mill, their successors and assigns, the proper and necessary [26]*26amount of water and water power for the proper running and operation of the said mill, without any further compensation or reward to be paid therefor by the owners of the said mill;” .that this duty was performed until the James Eiver and Kanawha Company conveyed its property to the Eichmond and Alleghany Eailroad Company; that the E. & A. E. E. Co. became bound to perform this obligation of the James Eiver and Kanawha Company, and did so until its rights and property, including said dam and canal, were conveyed to the defendant; that the defendant, under an act of Assembly, approved December 18, 1889 (Acts 1889-’90, p. 2), became bound to perform the obligations of the James Eiver and Kanawha Company, and did so until October, 1892.
It then alleges that Stillman and Ashlin owned the mill property when the dam and canal were constructed, and that plaintiff has acquired the same by lawful transfers.
It then alleges that the defendant, “on the-day of October, 1892, and from thence until October 1, 1895, negligently and wilfully failed to keep said dam in due and proper order and repair, and allowed it to"become greatly out of repair,'and in a leaky condition,” etc., so that the said plaintiff, during a large portion of that time, was not provided with, and could not obtain, the necessary and proper amount of water power for the said mill.
This count is clearly based upon the failure to perform an alleged contract.
As soon as this amended declaration was filed, the defendant tendered a plea alleging that the Circuit Court of Eichmond city had exclusive jurisdiction of the alleged causes of action. This plea was objected to and rejected.
It was based on section 4, act of February 27, 1879, Acts 1878-’9, p. 125.
A majority of the court is of opinion that the Circuit Court of [27]*27Fluvanna county liad jurisdiction of the cause. As the court is not unanimous on this point, it will not be further discussed.
A demurrer to the declaration and to each count thereof was overruled by the Circuit Court, and that is assigned as error, but no objections are specified.
If the power of the James River and Kanawha Company to make a contract to furnish water for a mill, or factory, regardless of the sufficiency of the water both for transportation and for such mill or factory is involved in this demurrer, the question was not argued, and we do not consider it necessary to a proper decision of this case. Therefore, we do not express any opinion upon that point in sustaining the action of the Circuit Court in overruling the demurrer.
The next point to be considered arises out of Special Plea Ko. 2, and the replication thereto.
The plea was filed to meet the first and second counts. It alleges that the James River and Kanawha Company, by lawful authority, constructed and operated a canal through the mill tract mentioned in the declaration; that the right to construct the dam, and to appropriate a sufficient quantity of water from the river to supply the canal, were duly acquired by the James River and Kanawha Company by proper condemnation proceedings; that the defendant had, under an act of Assembly approved December 18, 1889, acquired the canal, and that it was and is its duty to keep the canal at all times supplied with water for purposes of navigation, and that to do this it was necessary to draw the water from the river at the mills, and that it had taken no more water than was necessary to supply the canal for the purposes of navigation.
"Without objecting to this plea, the plaintiff filed a general replication thereto, and, at the next term of the court, offered a special replication, as follows: “ That the Act of Assembly, under which the supposed condemnation proceedings in the plea mentioned were had, provided that the judgment upon the report [28]*28of the assessors in said condemnation proceedings shall be no bar to the recovery of damages for any injury not foreseen and estimated by them, and accruing after the date of their reports; and that the damages complained of by said plaintiffs in the said declaration were not foreseen and estimated by the assessors who made the report on the said supposed condemnation proceedings, and the said damages accrued after the date of said report, and tins the said plaintiff prays may be inquired of by the country.”
The defendant moved the court to reject this replication, which motion was overruled, and that ruling is assigned as error.
The plaintiff seeks to avoid .this assignment by claiming that the plea should have been rejected, because the matter alleged could have been given in evidence under the general issue, which had been pleaded, and because the plea does not state what counts of the declaration it is intended to meet.
As already stated, a general replication had been filed to this plea, and therefore the special replication should have been rejected unless the other was withdrawn. C. & O. Ry. Co. v. Bank, 92 Va. 495.
At common law, and in this State, when there is but one plea, and leave to amend is not asked, final judgment is rendered on a demurrer. Unless all the pleadings are reviewed on the demurrer, the judgment may be contrary to the right of the cause, either in favor of a plaintiff who has shown no cause of action, or of a defendant who has shown no sufficient grounds of defence. Bo final judgment can be rendered on a motion to strike out or to reject a pleading, and the reason for reviewing the whole record on demurrer does not exist where the objection is made by motion.
Special demurrers having been abolished, the motion to reject or strike out can be used to obviate objections to pleadings, such as duplicity and the like, which cannot now be raised by demurrer, when, as is said in Reed v. Hanna’s Ex’or, 3 Ran. 56, the party should not be put to the hazard of a demurrer. If he [29]*29employs the means to avoid the hazard of a demurrer, he is hardly entitled to its benefits. The motion to exclude the replication did not require the court to pass upon the sufficiency of the plea.
As this case must be remanded for a new trial, we should determine the sufficiency of all the pleadings which have been filed, where the proper steps have been taken to test their sufficiency.
We think Special Plea No. 2 is sufficient, and that the replication thereto is insufficient, and should be stricken out.
Several acts have been passed which recognize the Bivanna, or Earth Pork of Tames river, as it was first called, as a navigable stream, or as capable of being made so, and provide for its improvement. See act of October, 1765, 8 Hen. Stat. at Large, p. 148; act December 22, 1794, 1 Hen. Stat. at Large, new series, p. 330; act March 2, 1827, Acts 1826-% p. 58. What, if anything, was done under those acts, does not appear in this record. But by the tenth section of the act of March 23, 1839, Acts 1839, page 62, the James River and Kanawha Company was required, within twelve months after the navigation of its canal was opened to the town of Columbia, to make necessary provisions for accommodating the trade of the Rivanna river, by a basin convenient to the town, sufficiently capacious, etc., “and by constructing and by keeping in good and constant repair such side-locks and lateral canal as may be necessary to admit into the basin free entrance of boats ascending and descending the Bivanna river, for which purpose the said James Biver and Kanawha Company shall have full power to acquire by contract or condemnation the requisite lands and materials in the same manner, and subject to the same limitations and restrictions, as are prescribed by the charter in relation to other lands and materials required by the work of the company.”
It cannot be doubted that the Legislature, by this section, placed upon the James Biver and Kanawha Company the obligation to keep the basin and connecting canal supplied with [30]*30water, and that the authority to acquire lands and materials, and especially the authority to acquire lands for abutments for dams, which is repeatedly mentioned in the charter of the company and the amendments thereto, was for the express purpose of -having the water turned into the canal. The dam could be built for no other purpose. To aver that the assessors, when they made their report, and the court, when it entered judgment thereon, did not foresee that the water would be diverted from the river, and that they made no estimate therefor, or that the Legislature supposed they would make none, is to stultify the Legislature, the assessors, and the court.
The act incorporating the Upper Appomattox Company did not expressly grant the water, yet this court, in Stokes & Smith v. Upper Appomattox Company, 3 Leigh, 318, construed it as a grant of the water. For these reasons the replication should have been stricken out.
If, as is suggested by the defendant in error, Stillman and Ashlin had rights which could not be, or were not, condemned, that matter should have been pleaded.
The.next assignment of error arises out of Special Plea Ho. 3 and the replication thereto, both of which were objected to and admitted.
The plea alleges that in 1859 Stillman and Ashlin brought their suit in the Circuit Comt of Fluvanna county against the James River and Kanawha Company, averring in their declaration that the said company had unlawfully erected the dam in question, whereby the mill and appurtenant property had been damaged; that a verdict was obtained, and judgment rendered on the merits in favor of Stillman and Ashlin, and that the plaintiff is thereby estopped from asserting his present claim.
The replication is that the wrongs and injuries in the declaration mentioned are not the same or any part of those which were in issue, and on which the judgment in the plea mentioned was rendered.
[31]*31The plea was objected to, first, because it neither meets the whole declaration nor specifies the counts it is intended to meet; second, because it does not present a good defence to any part of the action; third, because the same matter was put in issue by the plea of not guilty.
The plea sets up the judgment as an estoppel to some claim asserted in the declaration. It cannot possibly apply to the first and second counts.
The third and fourth counts allege an undertaking by, and obligation on, the defendant, growing out of the erection of the dam, to maintain it for the benefit of the plaintiff's mill.
If the erection of the dam was adjudged to be unlawful, no such obligation can be asserted, and the plea meets the third and fourth counts, and is as clearly in response to them as if they were mentioned by numbers. It would be extremely technical and opposed to the statute of jeofails to reject this plea, or plea Ho. 2, for the lack of reference to the numbers of the counts.
.A party is forbidden to assume successive positions in the course of a suit or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other and mutually contradictory. An unsuccessful plaintiff in a suit for the specific performance of a contract was not permitted to maintain a suit to reform the contract and enforce it as reformed. Black on Judgments, section 632; Simpson v. Dugger, 88 Va. 963.
The first suit, as alleged in the plea, presented but two issues. Eirst, was the dam unlawfully erected; second, were the plaintiffs damaged by the unlawful erection of the dam? Under the declaration set forth in the plea, it was impossible to support the verdict and judgment on any ground or theory except that the dam was unlawfully erected. Therefore, the verdict and judgment established that fact. It is impossible for the plaintiff to recover under the third and fourth counts of the declaration in this suit, unless the dam was lawfully erected.
[32]*32Does the plea present an estoppel? We think it does. If it does not do so, the plaintiff may recover damages for the injury done by the dam as an unlawful structure, and then recover on the contract for the failure to maintain it, and this might continue indefinitely.
“ There is no doubt that a judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court, except on appeal, writ of error, or other proceeding provided for its revision.
“ The principle underlying and supporting all these decisions is, that a judgment necessarily affirming or denying a fact is conclusive of its existence whenever it becomes a matter in issue between the same parties, or between parties in privity with them. Therefore, a judgment for the defendant in an action for obstructing a water course, if based upon the ground that there was no water course to be obstructed, is, in subsequent actions, conclusive of the non-existence of such water course; but, if the judgment had been for the plaintiff, it would necessarily have been conclusive in other actions of the existence of the water course, and of its obstruction" Freeman on Judgments, section 249.
This principle has been frequently recognized and applied in this State (Shelton v. Barbour, 2 Wash. 64; Preston v. Harvey, 2 H. & M. 63; Douglass v. Fagg, 8 Leigh, 588; see also 7 Rob. Prac., pp. 237, 240 et seq.), and has been fully recognized in cases where it was held not to apply. Chrisman v. Harman, 29 Gratt., at page 500; Blackwell v. Bragg, 78 Va. 540.
The objection to the plea, that the matter was admissible under the general issue, was not well taken. While it has been held by this court not to be error to reject special pleas alleging [33]*33matter 'which could be given in under the general issue (Fant v. Miller & Mayhew, 17 Gratt. 67; Va. F. & N. Ins. Co. v. Buck & Newsom, 88 Va. 517), no case has been found which was reversed because such pleas were admitted. In West End Land Co. v. Claiborne, 97 Va. 740, the opinion was expressed that it was error to admit certain pleas because they could have been proved under the general issue, but the case was reversed for other errors. jSTo reference is made in that case, or in either of the cases cited, to the case of Maggort v. Hansbarger, 8 Leigh, 532, in which a very important, and very reasonable, distinction is drawn.
Special pleas had been admitted in an action of assumpsit, alleging matter which was provable under the general issue, and that was-assigned as error. Said Judge Parker, for the court: “ I know of no rule which inhibits the party from pleading specially what he might give in evidence under the general issue, unless the matter pleaded amounts to the general issue—that is to say, denies the allegations which the plaintiff is bound to prove. But where the cause of action is avoided by matter ex post facto it may always be specially pleaded, whether it could be given in evidence under the general issue or not.” Unless some improper advantage is sought to be obtained by filing them, the plaintiff is usually benefited rather than injured by special pleas which give him full and specific notice of the defences.
But there is another reason why Special Plea Ro. 3 should have been admitted in this case. A distinction has been taken in England, and in some of the United States^ and several times recognized in this State, between the effect of a judgment as an estoppel where it is pleaded, and where it is only relied on in evidence.
In the first instance, it is held to be conclusive; in the last instance, it is held that the jury are not estopped, but must find their verdict upon the whole evidence in the case, and may find against the former judgment. Cleaton v. Chambliss, 6 Ran. 94; [34]*34Craddock v. Turner’s Adm’r, 6 Leigh, 129; Carrol County v. Collier, 22 Gratt. 309; Hayes and Wife v. Va. Mut. Ass’n, 76 Va. 231.
No litigant should be required to submit the question of the validity and effect of a judgment to the determination of a jury, unless he elects so to do.
The replication is not a denial of the plea. It neither makes nor tenders an issue. It simply says that the injuries complained of in this suit are not the same injuries for -which the judgment was rendered in the Stillman and Ashlin suit. That was apparent on the face of the plea, and if the plaintiff considered it a reason why the plea was bad, he should have demurred. A replication must either traverse the plea, or set up matter in confession and avoidance.
The plaintiff seems to have confounded the plea of estoppel by a former verdict with the plea of res adjudícala, which is good only when the causes of action are the same. 7 Rob. Prac. 344. The replication should have been rejected.
It is, of course, competent for the plaintiff to reply any matter arising since the judgment in favor of Stillman and Ashlin which may have revived the right, if it ever existed, to insist that the dam shall be maintained for the benefit of the plaintiff’s mill.
The plaintiff, both by the objection to the plea and by an instruction which was given, invokes the doctrine of estoppel against estoppel. The claim is that the judgment in the condemnation proceedings established the fact that the dam was a lawful structure, and estops both parties from denying that fact; that, if the Stillman and Ashlin suit estops the parties to deny that the dam was lawfully erected, there is an estoppel against an estoppel, which, it is said, “setteth the matter at large,” and leaves open the question of the character of the dam.
This question can be disposed of without discussing the effect •of an estoppel against an estoppel, where such exists.
It is essential to an estoppel by record that the identical ques[35]*35tion upon which it is invoked was in issue in the former proceeding.
The rule is thus stated in Black on Judgments, section 610: “ There must be an identity of issues, and by this is meant that the issue raised in the second suit, upon which the evidential force of the former judgment is to be dii’eeted, must he identical with the issue, or one of the issues, raised and determined in the first action.”
The condemnation proceedings only adjudged that the James River and Kanawha Company might erect a dam in a lawful manner, hut it did not determine that it had done so. In the Stillman and Ashlin suit, the character of the dam, after it was erected, was put in issue, and it was determined that the company had not done so. The argument and inference may he very strong that the James River and Kanawha Company would and •did erect the dam in a lawful manner, but there is no adjudication that it did, which can he pleaded as an estoppel to the adjudication that it did not. See Mersereau v. Pearsall, 19 N. Y. 111.
If the adjudication were on the same point, it would he necessary to consider how far the effect of the judgment in the condemnation proceedings was waived by the parties, by submitting the question to a trial in the Stillman and Ashlin suit. Mersereau v. Pearsall, supra; Tibbetts v. Sharpleigh, 60 N. H. 487.
The last assignment of error which we consider it necessary to notice is the admission of parol evidence, tending to prove that, in the suit of Stillman and Ashlin v. James River and Kanawha Company, the issue of the dam being unlawfully erected, was not tried. This evidence was improper. The record must show what the issues were. The declaration alleged that the dam was unlawfully erected. Without that allegation, no cause of action was alleged. The plea, “not guilty,” put that allegation in issue.
To say that this was not in issue, is to contradict the record. [36]*36“ Parol evidence to slioiv a recovery for a different cause of action from the one specially stated in the pleadings did not tend to explain, but to contradict the record of a former recovery.” 7 Rob. Prac. 265.
Except for the purpose of identifying the subject-matter to-which the verdict and judgment apply, parol evidence is inadmissible, and the record must speak for itself when it is pleaded as an estoppel. 7 Rob. Prac., pp. 269-70. If Stillman and Ashlin had owned two mills, and the canal company had owned two dams, parol evidence would have been admissible to explain which mill and dam were the subjects of the issue made by the-pleadings, but not to prove what the issues were.
It follows from what has been said that the verdict and judgment must be set aside, the replications to- the special Pleas Bos. 2 and 3 stricken out, with leave to the plaintiff to make such proper replication as he may be advised to make, and that a new trial be had in -accordance with the principles announced herein-
Reversed-