The opinion of the court was .delivered by
Barrett, J.
The first exception in this case is as to the testimony given by Gen. Thomas. It was offered, and was allowed to be used, as bearing upon the question whether Bruce, while an owner of the lower dam, was claiming the right to draw water from the upper dam. What Thomas testified that Bruce told Mm was regarded by the county court as tending to show that Bruce was, in fact, claiming such a right. In this we think there was no error. According to the testimony of Thomas, Bruce was telling him a set of facts, and that, as the result of those facts, the owners of the lower mills were to have the right to draw water from the upper dam. It is true that Bruce did not, in express terms, say that he claimed the right, but he stated the right as existing in himself, and he stated it under circumstances, and in a way, that strongly indicated that he was doing it as a mode, and in the sense, of asserting the existence of the right in himself as an owner of the lower mills.
As to the second exception, the court instructed the jury what would be necessary to effectuate the acquirement of the right or easement claimed by the plaintiff, by adverse user. It is to be assumed that it was correctly done. The court, with reference to the contract named in the exceptions, instructed the jury that if the former owners of the lower mill, under claim of right under that contract, had exercised the. right in the manner necessary to gain a right by adverse use, they would not be prevented from acquir[756]*756ing the right, even if the owner of the upper mill did occasionally, while the owners of the lower mills were thus enjoying the right, object or deny the right, if he did not in any way interfere with or interrupt that enjoyment, and they enjoyed it in spite of such objection as fully as if there had been no such objection or denial. To the charge as to the effect of the objections or denial, the defendant excepted.
This exception involves only the verbal objections or denial, and not at all the acts of the owner of the upper mill, which the defendant’s evidence tended to show were done in contravention of the adverse claim of right, and in interruption and prevention of the exercise and enjoyment of such right by user by the owners of the lower mill. As to that evidence, it is to be assumed that the jury were properly instructed. The fact that the flow of the water to the lower.mills was through the flume and gates of the upper mill, and ’ so was within the control of the owner of the upper mill, gives special significance and force to the continued and uninterrupted enjoyment of the right claimed by the owners of the lower mills, as bearing on the matter of acquiescence on the part of the owner of the upper mill. Such enjoyment and user as the jury must have found, under the charge given by the court, must have been by the permission, in fact, of the upper mill owner, whatever he may have said about it, or about the right claimed by the owners of the lower mills. This, it seems to us, must be regarded as answering fully to the idea of the law in respect to the requirement of acquiescence in such cases. It is largely within the expression of Poland, J., in Tracy v. Atherton, 36 Vt., p. 514. His denying the right and objecting to the claim of the other party, at the same time that he, in fact, was permitting the water to flow through his own flume and gates, over which ho had entire control, in a manner answerable to the claim of the other party, suggests the expression of the poet in relation to one of his heroines :
“ Saying 1 will ne’er consent,’ consented.”
' This case is different from that in 8 Gray, 441. li the question in that case had been as to the right in the defendant to have the aqueduct through the land of the plaintiff, acquired by [757]*757adverse enjoyment, that case would haye been more analogous to this. But such was not the question. It was as to the right of the defendant to dig up the soil for the purpose of repairing the aqueduct. This could be acquired only by a user consisting in acts, on the part of the defendant, of going upon and digging up the soil with the acquiescence of the'plaintiff. In the other case, no act by the defendant, on the land of the plaintiff, would be requisite to the acquirement of the easement. All he would have to do would be to use and enjoy, with a claim of right, what was furnished or permitted to him by the plaintiff, without any adversary act on his own part, as against the plaintiff. The present case furnishes a plain illustration. The owners of the lower mills had only to use the water as it came to them through the flume and gates of the upper mill, claiming the right to have it so come for such use. This, continuing for the requisite period, would vest the right in the lower mill owners, without any act on their part on the possessions and property of the upper mill-owners. The upper mill-owners, by permitting the water thus to run, must be regarded as acquiescing in its running, whatever they may have said by way of denying the right as claimed by the’ other party. In the case in 8 Gray, supra, the acquirement of the right claimed depended on adversary acts of the defendant upon the land of which the plaintiff was in the occupancy, and in order to render such acts effectual, it was regarded necessary that they should have been acquiesced in by the plaintiff. If he had made no objection to them, it would virtually have been acquiescence. He did object, and denied the right, and forbade the defendant to enter on his land, and ordered him and his servants off. This certainly was all the plaintiff could do to manifest want of acquiescence, and to prevent the adversary acts of user and enjoyment in virtue of which the defendant was claiming to have acquired the casement, unless he had interposed with actual force. This he was not required to do. As before suggested, we regard the exceptions as showing that the defendant had the full force and benefit of his evidence of acts in respect to non-acquiescence in, and interruption of, the use and enjoyment of the right claimed by the owners of the lower mills, and as presenting on this subject, [758]*758nakedly, the operation and effect of a mere verbal objection to and denial of the right thus claimed, while at the same time permitting that use and enjoyment to continue in as Mi measure, in every respect, as if no such objections or denial had been made. We think the court committed no error in the instructions given .to the jury on this point of exception.
The third exception, as to the reservation in the deed to the defendant, January 11, 1855. It seems to us that such reservation was proper for the consideration of the jury uppn the question whether such right as the plaintiff claimed was existing in the owners of the grist-mill at the time such deed was made. It might signify that and it might not. It might have been made, as suggested in the argument, because the heirs of Eliphalet Dodge may have had some notion of becoming the owners of the gristmill property and wanted to secure for their own use the right reserved. It might have been made, no! in recognition of an existing perfected right, but because the grantors knew of a claim in that respect, and for the purpose of forefending themselves from the hazard of liability upon their covenants of warranty. It Avas for the jury upon all the evidence to determine the Anew in which it was inserted and consider it as eAddence, or lay it out, as they should thus determine.
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The opinion of the court was .delivered by
Barrett, J.
The first exception in this case is as to the testimony given by Gen. Thomas. It was offered, and was allowed to be used, as bearing upon the question whether Bruce, while an owner of the lower dam, was claiming the right to draw water from the upper dam. What Thomas testified that Bruce told Mm was regarded by the county court as tending to show that Bruce was, in fact, claiming such a right. In this we think there was no error. According to the testimony of Thomas, Bruce was telling him a set of facts, and that, as the result of those facts, the owners of the lower mills were to have the right to draw water from the upper dam. It is true that Bruce did not, in express terms, say that he claimed the right, but he stated the right as existing in himself, and he stated it under circumstances, and in a way, that strongly indicated that he was doing it as a mode, and in the sense, of asserting the existence of the right in himself as an owner of the lower mills.
As to the second exception, the court instructed the jury what would be necessary to effectuate the acquirement of the right or easement claimed by the plaintiff, by adverse user. It is to be assumed that it was correctly done. The court, with reference to the contract named in the exceptions, instructed the jury that if the former owners of the lower mill, under claim of right under that contract, had exercised the. right in the manner necessary to gain a right by adverse use, they would not be prevented from acquir[756]*756ing the right, even if the owner of the upper mill did occasionally, while the owners of the lower mills were thus enjoying the right, object or deny the right, if he did not in any way interfere with or interrupt that enjoyment, and they enjoyed it in spite of such objection as fully as if there had been no such objection or denial. To the charge as to the effect of the objections or denial, the defendant excepted.
This exception involves only the verbal objections or denial, and not at all the acts of the owner of the upper mill, which the defendant’s evidence tended to show were done in contravention of the adverse claim of right, and in interruption and prevention of the exercise and enjoyment of such right by user by the owners of the lower mill. As to that evidence, it is to be assumed that the jury were properly instructed. The fact that the flow of the water to the lower.mills was through the flume and gates of the upper mill, and ’ so was within the control of the owner of the upper mill, gives special significance and force to the continued and uninterrupted enjoyment of the right claimed by the owners of the lower mills, as bearing on the matter of acquiescence on the part of the owner of the upper mill. Such enjoyment and user as the jury must have found, under the charge given by the court, must have been by the permission, in fact, of the upper mill owner, whatever he may have said about it, or about the right claimed by the owners of the lower mills. This, it seems to us, must be regarded as answering fully to the idea of the law in respect to the requirement of acquiescence in such cases. It is largely within the expression of Poland, J., in Tracy v. Atherton, 36 Vt., p. 514. His denying the right and objecting to the claim of the other party, at the same time that he, in fact, was permitting the water to flow through his own flume and gates, over which ho had entire control, in a manner answerable to the claim of the other party, suggests the expression of the poet in relation to one of his heroines :
“ Saying 1 will ne’er consent,’ consented.”
' This case is different from that in 8 Gray, 441. li the question in that case had been as to the right in the defendant to have the aqueduct through the land of the plaintiff, acquired by [757]*757adverse enjoyment, that case would haye been more analogous to this. But such was not the question. It was as to the right of the defendant to dig up the soil for the purpose of repairing the aqueduct. This could be acquired only by a user consisting in acts, on the part of the defendant, of going upon and digging up the soil with the acquiescence of the'plaintiff. In the other case, no act by the defendant, on the land of the plaintiff, would be requisite to the acquirement of the easement. All he would have to do would be to use and enjoy, with a claim of right, what was furnished or permitted to him by the plaintiff, without any adversary act on his own part, as against the plaintiff. The present case furnishes a plain illustration. The owners of the lower mills had only to use the water as it came to them through the flume and gates of the upper mill, claiming the right to have it so come for such use. This, continuing for the requisite period, would vest the right in the lower mill owners, without any act on their part on the possessions and property of the upper mill-owners. The upper mill-owners, by permitting the water thus to run, must be regarded as acquiescing in its running, whatever they may have said by way of denying the right as claimed by the’ other party. In the case in 8 Gray, supra, the acquirement of the right claimed depended on adversary acts of the defendant upon the land of which the plaintiff was in the occupancy, and in order to render such acts effectual, it was regarded necessary that they should have been acquiesced in by the plaintiff. If he had made no objection to them, it would virtually have been acquiescence. He did object, and denied the right, and forbade the defendant to enter on his land, and ordered him and his servants off. This certainly was all the plaintiff could do to manifest want of acquiescence, and to prevent the adversary acts of user and enjoyment in virtue of which the defendant was claiming to have acquired the casement, unless he had interposed with actual force. This he was not required to do. As before suggested, we regard the exceptions as showing that the defendant had the full force and benefit of his evidence of acts in respect to non-acquiescence in, and interruption of, the use and enjoyment of the right claimed by the owners of the lower mills, and as presenting on this subject, [758]*758nakedly, the operation and effect of a mere verbal objection to and denial of the right thus claimed, while at the same time permitting that use and enjoyment to continue in as Mi measure, in every respect, as if no such objections or denial had been made. We think the court committed no error in the instructions given .to the jury on this point of exception.
The third exception, as to the reservation in the deed to the defendant, January 11, 1855. It seems to us that such reservation was proper for the consideration of the jury uppn the question whether such right as the plaintiff claimed was existing in the owners of the grist-mill at the time such deed was made. It might signify that and it might not. It might have been made, as suggested in the argument, because the heirs of Eliphalet Dodge may have had some notion of becoming the owners of the gristmill property and wanted to secure for their own use the right reserved. It might have been made, no! in recognition of an existing perfected right, but because the grantors knew of a claim in that respect, and for the purpose of forefending themselves from the hazard of liability upon their covenants of warranty. It Avas for the jury upon all the evidence to determine the Anew in which it was inserted and consider it as eAddence, or lay it out, as they should thus determine. If they should find that it Avas made with reference to a right then supposed by the grantors to exist in the OAvner of the grist-mill, it is unquestioned that it would be pertinent and potent evidence tending to show that such right in .fact had been-acquired and wasbf force and effect.
We think this matter was put to the jury in a proper manner.
Without discussing or deciding whether there was a variance between the declaration and the fact established by the special verdict, of which I think there is considerable reason for doubting, and assuming that there was such variance, and that without amendment of the declaration a judgment for the plaintiff on the verdict Avould have been erroneous, could the amendment be lawfully allowed ? Of course it could not, if it brought a new cause of action upon the record. It has been several times judicially said that new cause of action, with reference to the legality of an amendment, is not to be regarded in tbs same sense, nor settled [759]*759by tlie same rule, as when it is involved in questions of pleadings and evidence. The occasion for bringing this suit was what the defendant had done to diminish the usual flow of water to and by the lower mills, thereby causing damage to the plaintiff. In order to maintain a suit for this, it was necessary for the plaintiff to set forth and show a right in himself to have the water flow as it had been accustomed, and some interest in himself to be served by having it so flow, and a detriment to such interest by the conduct of the defendant in preventing such flow. This he did in Ms declaration, and alleged, as such interest, the working, using, and enjoying his several mills and premises. As constituting his cause of action, so far as it was depending on the acts of the defendant, he set forth that the defendant shut down and fastened his gates and thereby penned back and stopped the waters flowing to said mills and machinery in their usual course, and from supplying the same -with water for the necessary working thereof as the same of right ought to have done, and otherwise would have done; and as constituting the damage, he sets forth that he was thereby hindered and prevented from using his said mills and machinery, etc., in so ample, extensive and beneficial a manner as he otherwise might and would have done. The amendment proposed and allowed was to limit the plaintiff’s right of recovery to the damage he suffered in respect to his grist-mill. But this did not require or depend upon any fact or any averment in the declaration different from what it originally contained, except in this particular. The case under the amended declaration consisted of precisely the same matters of fact, to be shown by the evidence, as under the original declaration.. The extent of the plaintiff’s right was to be determined in view of the facts proved. Thc'*evidence tended to show the plaintiff’s right to the full extent in every particular set forth in the declaration. It did show it in one particular set forth in the declaration, to which precisely the same evidence was pertinent, pro and con, as was pertinent to show it in the other particulars. The amendment then was not bringing upon the record, or giving occasion for evidence of any other set of facts than those contemplated and pertinent under the original declaration as constituting the ground of the plaintiff’s right, or of the defendant’s [760]*760violation of it. The only thing varied by the amendment is in respect to the averment in the declaration, that the plaintiff had and ought still to have of right such flow of the water, for supplying water for the working, using and enjoying said mills, machinery and premises respectively; and in that respect the averment “ of right ” is limited by the amendment to the grist-mill.
Now it seems to us that what was said and held in Hill v. Smith et al., 34 Vt., 535, and in Boyd v. Bartlett, 36 Vt., 9, is ample to show that, as to the subject matter of the amendment, it was within the province of the court to allow it to be made. Nothing-need be added to those cases either to develop the principle or to illustrate its application to the present case, provided the making of the amendment was seasonably moved. Other cases cited in the argument tend to the same result as those above named.
The amendment was moved and allowed after a special verdict had been returned, and before judgment. The Gen. St., 267, § 41, provides that the court may, at any time, permit, etc. This certainly is broad enough to authorize the court to allow any amendment that, in point of subject-matter, is proper to be made, to be so made at any time while the case is in the hands of the court, and in the process of being made up and perfected for judgment. Every practical reason, looking to substantial justice as the end of administering- the law, requires that this should be so. Such has been the view of the courts, as shown by the cases., See 13 Conn. Rep., 469; 6 Barb. Rep., 117 ; 2 N. & M. Rep., 440. In Winn v. Averill, 24 Vt., 283, an amendment was allowed by striking out a party’s name from the process and declaration, after an auditor’s report had been filed in court showing that he had been improperly inserted. In Montgomery v. Maynard, 33 Vt., 450, an amendment of vital importance was’allowed after the evidence on both sides was closed. The language of Poland, J., on this subject, has forcible pertinency to the present case. See Dana v. McClure, 39 Vt., 197. We refer with special commendation to the language of Pierpoint, C. J., in the close of the opinion in Lewis & Co. v. Locke, 41 Vt., 11; Stephens v. Thompson et al., 28 Vt., 77 ; Bowman v. Stowell et al., 21 Vt., 309.
On the whole, we are satisfied that the judgment of the county court should be affirmed. I