Sanford, J.
1. The defendant claims that the testimony of Arabella Cobb, to prove that the same wheel which frightened the plaintiff’s horse also frightened hers, ought not to have been received.
We think it.was properly admitted. The plaintiff’s claim was, that the wheel in motion was an object naturally calculated to frighten horses traveling on the public road, and was, therefore, a public nuisance. And we think he had a right, not only to show the facts regarding its size, form, location, exposure to view, and mode of operation, from which the jury might infer what effects it- would naturally, necessarily, or probably produce, but also to prove what effects it had produced in fact. A single instance would indeed be of little avail standing alone. A number of instances might afford satisfactory, if not demonstrative, evidence. And the inquiry in every such case is, not whether the evidence offered is sufficient to prove the fact claimed, but whether it tends to prove it.
It is claimed that the evidence was objectionable because it presented a new issue to the triers, and operated as a surprise upon the defendant. That the reception of the evidence rendered proper an inquiry into the character of Miss Cobb’s horse, and her ability to manage him, and, indeed, into all of the circumstances under which the accident occurred, is not to be denied ; as the value of the result always depends upon the fairness of the experiment, and [637]*637the triers can not know how to appreciate the one, until the other is made known to them. But every piece of evidence, introduced in any case, is, or may be, subjected to the same or similar tests, and can not for that reason be rejected. And because the fact to be established, to wit, that the wheel was an object of terror to horses, was directly involved in the issue on the record, and the evidence objected to tended to establish it, and therefore to prove the issue, the defendant was bound to come prepared to meet it. It was of no importance that the defendant was ignorant of Miss Cobb’s misfortune. The question was, whether testimony that her' horse was frightened by the wheel conduced to prove that wheel a nuisance; and the defendant’s ignorance of the accident had no bearing on the question.
2. The defendant claims that there was a fatal variance between the declaration and the proof, in regard to the vehicle with which the plaintiff was traveling, and in regard to the manner in which his injuries were inflicted.
We think this question was properly disposed of by the superior court. Whether the evidence that the plaintiff’s carriage was a sulky, instead of a buggy, as alleged in the declaration, was objectionable on the ground of variance, or not, the jury were instructed to allow no damages for an injury to the sulky, so that no injury can have accrued to the defendant from the reception of the evidence in the first instance, and a new trial ought not to be granted on aécount of it.
But we think no case of variance is stated in the motion. Whether the plaintiff was thrown to the ground and injured, by the running and falling of the horse, or by the running of the horse and the overturning of the carriage, was of no importance whatever. Indeed, there is no substantial difference in this respect between the allegation in the declaration and the proof as stated in the motion. Between the acts of riding or driving in a buggy, and riding or driving in a sulky, there is, indeed, a natural and necessary difference; they can not be the same; but it by no means follows, that, because of that difference, there was a legal variance between the declaration and the proof. Suppose that the plaintiff had [638]*638alleged that, at the time of the accident, his carriage was green or his hat white, would his right of recovery have been affected by proof that the one was red and the other black? A variance is a disagreement between the allegations and the proof in some matter which, in point of law, is essential to the charge or claim. When such disagreement appears the evidence is rejected, because, otherwise, the defendant would be surprised by proof of a claim of which he had had no notice by the declaration. But the correspondency required between the allegations and the proof is a legal, not necessarily a natural one. That is, it is requisite in those particulars only which are in themselves essential to the claim, or which in some way qualify those which are, by their connection with them, in the mode of statement, and so become essential. And when the whole of an allegation may be stricken out without affecting those which remain, and leaving sufficient allegations to maintain the claim, that allegation may be treated as surplusage, and entirely disregarded. Now the allegation that the plaintiff was passing with his buggy, was, in itself, no more essential to his right of recovery than the color of his hat.
The fact stated as the foundation of the defendant’s liability, is, that the wheel was calculated to frighten horses passing by the mill along the road. That was an essential allegation. And then it was equally essential, to state that the plaintiff’s horse was passing by the mill along the road, and was frightened by the wheel, but in what kind of carriage was of no importance; the effect of the wheel upon the horse neither being, nor in the declaration alleged to be, at all dependent upon his connection with any carriage whatever.
Nor does the immaterial allegation that the plaintiff' was traveling with a buggy, become essential or material, by its statement in the same sentence with the material one relating to the horse; because the latter is in no wise qualified or affected by the former. All that is said in the declaration about the buggy, may be stricken out, without in the least affecting those material allegations which remain or the plaintiff’s right to recover in the action.
[639]*6393. It being admitted, that prior to 1824 the wheel which then propelled the mill was not a nuisance, and the plaintiff claiming that, by the substitution in 1824 of the present overshot wheel for the former undershot one, the nuisance was created, the question made by the defendant, whether, by the laying out of the highway after the erection and use of the defendant’s mill and wheel, that mill and wheel could be made a nuisance, was an immaterial question, regarding which the judge was under no obligation to express an opinion to the jury, because it was inapplicable to the state of facts before them. The judge’s. omission to comply with the defendant’s request in this particular, therefore, affords no ground for a new trial.
4. So, too, the charge requested in regard to alterations of the wheel, was properly refused, because uncalled for. The plaintiff’s claim was, that the present overshot wheel, put in in 1824, was a nuisance, and the nuisance which caused his injury, and no evidence whatever was offered that any alterations had been made in it since its first erection. Why should the jury be perplexed by the announcement of a legal proposition of no practical importance in the case ?
5. The defendant requested the court to charge the jury, that if his mill had been run for thirty years next before the accident, in the same condition in which it was at that time, he had a right so to run it, and was not liable for such accident.
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Sanford, J.
1. The defendant claims that the testimony of Arabella Cobb, to prove that the same wheel which frightened the plaintiff’s horse also frightened hers, ought not to have been received.
We think it.was properly admitted. The plaintiff’s claim was, that the wheel in motion was an object naturally calculated to frighten horses traveling on the public road, and was, therefore, a public nuisance. And we think he had a right, not only to show the facts regarding its size, form, location, exposure to view, and mode of operation, from which the jury might infer what effects it- would naturally, necessarily, or probably produce, but also to prove what effects it had produced in fact. A single instance would indeed be of little avail standing alone. A number of instances might afford satisfactory, if not demonstrative, evidence. And the inquiry in every such case is, not whether the evidence offered is sufficient to prove the fact claimed, but whether it tends to prove it.
It is claimed that the evidence was objectionable because it presented a new issue to the triers, and operated as a surprise upon the defendant. That the reception of the evidence rendered proper an inquiry into the character of Miss Cobb’s horse, and her ability to manage him, and, indeed, into all of the circumstances under which the accident occurred, is not to be denied ; as the value of the result always depends upon the fairness of the experiment, and [637]*637the triers can not know how to appreciate the one, until the other is made known to them. But every piece of evidence, introduced in any case, is, or may be, subjected to the same or similar tests, and can not for that reason be rejected. And because the fact to be established, to wit, that the wheel was an object of terror to horses, was directly involved in the issue on the record, and the evidence objected to tended to establish it, and therefore to prove the issue, the defendant was bound to come prepared to meet it. It was of no importance that the defendant was ignorant of Miss Cobb’s misfortune. The question was, whether testimony that her' horse was frightened by the wheel conduced to prove that wheel a nuisance; and the defendant’s ignorance of the accident had no bearing on the question.
2. The defendant claims that there was a fatal variance between the declaration and the proof, in regard to the vehicle with which the plaintiff was traveling, and in regard to the manner in which his injuries were inflicted.
We think this question was properly disposed of by the superior court. Whether the evidence that the plaintiff’s carriage was a sulky, instead of a buggy, as alleged in the declaration, was objectionable on the ground of variance, or not, the jury were instructed to allow no damages for an injury to the sulky, so that no injury can have accrued to the defendant from the reception of the evidence in the first instance, and a new trial ought not to be granted on aécount of it.
But we think no case of variance is stated in the motion. Whether the plaintiff was thrown to the ground and injured, by the running and falling of the horse, or by the running of the horse and the overturning of the carriage, was of no importance whatever. Indeed, there is no substantial difference in this respect between the allegation in the declaration and the proof as stated in the motion. Between the acts of riding or driving in a buggy, and riding or driving in a sulky, there is, indeed, a natural and necessary difference; they can not be the same; but it by no means follows, that, because of that difference, there was a legal variance between the declaration and the proof. Suppose that the plaintiff had [638]*638alleged that, at the time of the accident, his carriage was green or his hat white, would his right of recovery have been affected by proof that the one was red and the other black? A variance is a disagreement between the allegations and the proof in some matter which, in point of law, is essential to the charge or claim. When such disagreement appears the evidence is rejected, because, otherwise, the defendant would be surprised by proof of a claim of which he had had no notice by the declaration. But the correspondency required between the allegations and the proof is a legal, not necessarily a natural one. That is, it is requisite in those particulars only which are in themselves essential to the claim, or which in some way qualify those which are, by their connection with them, in the mode of statement, and so become essential. And when the whole of an allegation may be stricken out without affecting those which remain, and leaving sufficient allegations to maintain the claim, that allegation may be treated as surplusage, and entirely disregarded. Now the allegation that the plaintiff was passing with his buggy, was, in itself, no more essential to his right of recovery than the color of his hat.
The fact stated as the foundation of the defendant’s liability, is, that the wheel was calculated to frighten horses passing by the mill along the road. That was an essential allegation. And then it was equally essential, to state that the plaintiff’s horse was passing by the mill along the road, and was frightened by the wheel, but in what kind of carriage was of no importance; the effect of the wheel upon the horse neither being, nor in the declaration alleged to be, at all dependent upon his connection with any carriage whatever.
Nor does the immaterial allegation that the plaintiff' was traveling with a buggy, become essential or material, by its statement in the same sentence with the material one relating to the horse; because the latter is in no wise qualified or affected by the former. All that is said in the declaration about the buggy, may be stricken out, without in the least affecting those material allegations which remain or the plaintiff’s right to recover in the action.
[639]*6393. It being admitted, that prior to 1824 the wheel which then propelled the mill was not a nuisance, and the plaintiff claiming that, by the substitution in 1824 of the present overshot wheel for the former undershot one, the nuisance was created, the question made by the defendant, whether, by the laying out of the highway after the erection and use of the defendant’s mill and wheel, that mill and wheel could be made a nuisance, was an immaterial question, regarding which the judge was under no obligation to express an opinion to the jury, because it was inapplicable to the state of facts before them. The judge’s. omission to comply with the defendant’s request in this particular, therefore, affords no ground for a new trial.
4. So, too, the charge requested in regard to alterations of the wheel, was properly refused, because uncalled for. The plaintiff’s claim was, that the present overshot wheel, put in in 1824, was a nuisance, and the nuisance which caused his injury, and no evidence whatever was offered that any alterations had been made in it since its first erection. Why should the jury be perplexed by the announcement of a legal proposition of no practical importance in the case ?
5. The defendant requested the court to charge the jury, that if his mill had been run for thirty years next before the accident, in the same condition in which it was at that time, he had a right so to run it, and was not liable for such accident.
There is no doubt but that less than thirty years enjoyment of an easement in the land of another, or thirty years continuance of a private nuisance, affords evidence from which the jury may presume and find, as a fact, the existence of the right, derived from the owner of the property affected, by grant or otherwise. But the evidence arising from such enjoyment or continuance may be rebutted, and the court can not decide, as a matter of law, that such enjoyment or continuance confers the right. And if, in like manner, thirty years continuance of a public nuisance affords similar evidence, (a point which it is not now our intention to decide,) that evidence must be submitted to the jury, for them to [640]*640make the proper inference, and decide the question whether the right has been acquired or not. The question is one, not of law, but of fact, and the court could not determine it. Upon this ground therefore, the omission of the judge to give the instruction prayed for was not erroneous
6. Theylefendant claimed that the highway on which the accident occurred was laid out eight rods wide, and that the mill'and wheel were beyond the limits of the highway as thus established, and he prayed the court to charge the jury, that if they found that the facts were as he claimed, then there was a fatal variance between the declaration and the proof which must defeat the plaintiff’s action.
What was the practical^width of the highway—how much ground was in fact inclosed and used as highway—no where appears. And whether the wheel was within or without the legal as distinguished from the practical limits of such highway, was unimportant—its injurious character arising, not from its interposing any material obstacle in the way of travelers on the road, but from its rendering traveling there unsafe, by the effect which the sight of it produced upon their horses. And besides, the averment in the declaration is, that the mill and wheel were situated, not within the highway as laid out, but only “within the inclosed limits of a certain street or highway in,” &c. And the charge on this point is in the identical language of the averment. We think the defendant has no just cause to complain of the charge in this particular.
7. The defendant contends that, the mill being at the time of the accident in the exclusive occupation of his tenant, and he having no rightful control over it during the continuance of the tenancy, he was for that reason exonerated from all liability for injuries occasioned by its use. But every one who aids, abets, instigates, authorizes or commands, as well as every one who actively participates in, the commission of a tort, is himself a principal tort-feasor, and liable as such. And the facts claimed by the defendant and found by the jury, that, at the time of the accident, the wheel was in the same condition as when the lease was made—-that it was used in the manner contemplated and intended by the par[641]*641ties to the lease—and that, for such use, the defendant was to be paid his stipulated compensation by way of rent—so far from exonerating him from, establish his legal liability for, the plaintiff’s injury.
Upon the whole, therefore, we think the verdict ought not to be disturbed.
In this opinion the other judges concurred.
New trial not advised.