Dixon, O. J.
The charge was chiefly made up of, and the court below granted, the requests to instruct, one and all, as prepared and presented by counsel for the plaintiff and for the defendant. Those requests evinced a very careful examination [261] and clear understanding, on tbe part of counsel respectively, of tbe principles of law applicable to tbe case, and by wbicb tbe rights of tbe parties were to be governed. There was, we think, no inconsistency in. tbe charge, and no misdirection in point of law. Tbe requests to charge, though not identical in language and form of expression, were, so far as they covered or professed to cover tbe same points, identical in principle. It is only objected to tbe first request made for tbe plaintiff, that it assumed that tbe defendant bad detained and held tbe water back, and let it down at improper times and seasons, and in an unreasonable manner, so as to injure tbe plaintiff, and prevent him from using and driving bis mill at proper times and in a reasonable manner. Tbe language of tbe request was, that tbe defendant “ bad no right ” to do those things. It is true, tbe request might have been made more clearly hypothetical; still this was not tbe language of assumption, wbicb took from tbe jury tbe consideration of tbe question whether tbe defendant bad detained and held tbe water back, etc. Tbe facts were left for tbe jury to consider and decide; and it was only in case they found ñ-om tbe evidence that tbe defendant bad detained and let down tbe water in tbe manner described, that they were informed be bad no such right. This was tbe fair meaning and import of tbe instruction ; and so we think tbe jury must have understood it
To tbe second request given for tbe plaintiff, tbe objection is, that there was no evidence wbicb justified it. It is said that there was no evidence tending to show that “ tbe defendant bad not used tbe water in a reasonable and proper manner for tbe regular prosecution of bis business, but, during tbe times specified in tbe plaintiff’s complaint, bad used it unreasonably, wantonly and unnecessarily,” and so on, in tbe language of tbe request. Upon this point we can only say, that, after a careful reading of tbe evidence, we cannot agree with tbe learned .counsel who make tbe objection. It clearly seems to us that [262] there was such evidence, which justified the granting of the request.
The third request to charge granted in plaintiff’s behalf was in these words: “If the jury find from the evidence in the case, that the defendant did, at any time after the erection of his new dam, and before the commencement of this action, detain the water at his mill or pond so that it did not run to the_ plaintiff’s mill in its usual current; and by reason thereof the plaintiff suffered injury, the defendant is liable to the plaintiff for such damages, unless it appears that such detention of the water by the defendant was necessary and reasonable for the convenient and profitable use of his own mill.”
This instruction is said to have been against the law of the' case, because the law recognizes changes in the current, in its velocity and the quantity of water, below all water mills, and such changes are presumed to be necessary and proper until the contrary appears. The gist of the objection, therefore, is, that the instruction was wrong as to the burden of proof, or which party had it, of showing that the detention of the water was necessary and reasonable for the convenient and profitable use of the upper mill, the fact of detention and of injury by reason thereof to the lower mill being first duly shown. Counsel cite authorities to the effect that such interruptions of the flow and changes in the volume and velocity of the water running in a stream used for hydraulic purposes, the same being necessarily incident to such use, carry with them no presumption of malice, but rather a presumption of innocence. That, however, is a different question; the point here, as already stated, being as to where the burden of proof rests to show the necessity and reasonableness of the detention, the fact of detention and of injury arising from it being first established. To this point no authorities are cited; and we doubt if any can be found to sustain the position assumed by counsel, which seems to be altogether outweighed by the reasons which may be opposed to it. [263] If not universal, it may at least be said to be a rule of very general application, that a sufficient prima facie case is made ■when it is shown that loss or injury has been sustained by the plaintiff, and that the same was caused by the act or default, or what may have been the default, of the defendant. A corresponding rule, and one no less general in its application, is, that matters of excuse or justifiction must be shown by the party claiming the benefit of them.
It is generally true of such matters, also, that they are peculiarly within the knowledge of the party seeking the benefit of them, and are not known or are incapable of disproof by the other party. To require the plaintiff to go beyond the prima fade case made by proof of injury, and of an adequate cause for it proceeding from the act or omission of the defendant, and to prove that there was no justification or excuse, would be to require him to prove a negative. This is a species of proof which the law and rules of evidence, except in rare and especial cases, never require. In the present case, it was far more fit and proper that the defendant should be required to show the necessity and reasonableness of the detention of the water for the convenient and profitable use of his own mill, than that the plaintiff should have been required to show the contrary. For these reasons we are of the opinion that this instruction, in common with all the others which were given, was correct, and that there was no misdirection in point of law in the charge of the court to the jury.
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Dixon, O. J.
The charge was chiefly made up of, and the court below granted, the requests to instruct, one and all, as prepared and presented by counsel for the plaintiff and for the defendant. Those requests evinced a very careful examination [261] and clear understanding, on tbe part of counsel respectively, of tbe principles of law applicable to tbe case, and by wbicb tbe rights of tbe parties were to be governed. There was, we think, no inconsistency in. tbe charge, and no misdirection in point of law. Tbe requests to charge, though not identical in language and form of expression, were, so far as they covered or professed to cover tbe same points, identical in principle. It is only objected to tbe first request made for tbe plaintiff, that it assumed that tbe defendant bad detained and held tbe water back, and let it down at improper times and seasons, and in an unreasonable manner, so as to injure tbe plaintiff, and prevent him from using and driving bis mill at proper times and in a reasonable manner. Tbe language of tbe request was, that tbe defendant “ bad no right ” to do those things. It is true, tbe request might have been made more clearly hypothetical; still this was not tbe language of assumption, wbicb took from tbe jury tbe consideration of tbe question whether tbe defendant bad detained and held tbe water back, etc. Tbe facts were left for tbe jury to consider and decide; and it was only in case they found ñ-om tbe evidence that tbe defendant bad detained and let down tbe water in tbe manner described, that they were informed be bad no such right. This was tbe fair meaning and import of tbe instruction ; and so we think tbe jury must have understood it
To tbe second request given for tbe plaintiff, tbe objection is, that there was no evidence wbicb justified it. It is said that there was no evidence tending to show that “ tbe defendant bad not used tbe water in a reasonable and proper manner for tbe regular prosecution of bis business, but, during tbe times specified in tbe plaintiff’s complaint, bad used it unreasonably, wantonly and unnecessarily,” and so on, in tbe language of tbe request. Upon this point we can only say, that, after a careful reading of tbe evidence, we cannot agree with tbe learned .counsel who make tbe objection. It clearly seems to us that [262] there was such evidence, which justified the granting of the request.
The third request to charge granted in plaintiff’s behalf was in these words: “If the jury find from the evidence in the case, that the defendant did, at any time after the erection of his new dam, and before the commencement of this action, detain the water at his mill or pond so that it did not run to the_ plaintiff’s mill in its usual current; and by reason thereof the plaintiff suffered injury, the defendant is liable to the plaintiff for such damages, unless it appears that such detention of the water by the defendant was necessary and reasonable for the convenient and profitable use of his own mill.”
This instruction is said to have been against the law of the' case, because the law recognizes changes in the current, in its velocity and the quantity of water, below all water mills, and such changes are presumed to be necessary and proper until the contrary appears. The gist of the objection, therefore, is, that the instruction was wrong as to the burden of proof, or which party had it, of showing that the detention of the water was necessary and reasonable for the convenient and profitable use of the upper mill, the fact of detention and of injury by reason thereof to the lower mill being first duly shown. Counsel cite authorities to the effect that such interruptions of the flow and changes in the volume and velocity of the water running in a stream used for hydraulic purposes, the same being necessarily incident to such use, carry with them no presumption of malice, but rather a presumption of innocence. That, however, is a different question; the point here, as already stated, being as to where the burden of proof rests to show the necessity and reasonableness of the detention, the fact of detention and of injury arising from it being first established. To this point no authorities are cited; and we doubt if any can be found to sustain the position assumed by counsel, which seems to be altogether outweighed by the reasons which may be opposed to it. [263] If not universal, it may at least be said to be a rule of very general application, that a sufficient prima facie case is made ■when it is shown that loss or injury has been sustained by the plaintiff, and that the same was caused by the act or default, or what may have been the default, of the defendant. A corresponding rule, and one no less general in its application, is, that matters of excuse or justifiction must be shown by the party claiming the benefit of them.
It is generally true of such matters, also, that they are peculiarly within the knowledge of the party seeking the benefit of them, and are not known or are incapable of disproof by the other party. To require the plaintiff to go beyond the prima fade case made by proof of injury, and of an adequate cause for it proceeding from the act or omission of the defendant, and to prove that there was no justification or excuse, would be to require him to prove a negative. This is a species of proof which the law and rules of evidence, except in rare and especial cases, never require. In the present case, it was far more fit and proper that the defendant should be required to show the necessity and reasonableness of the detention of the water for the convenient and profitable use of his own mill, than that the plaintiff should have been required to show the contrary. For these reasons we are of the opinion that this instruction, in common with all the others which were given, was correct, and that there was no misdirection in point of law in the charge of the court to the jury.
It appearing thus that there was no error in the charge, it next becomes necessary to inquire whether there was error in any other respect, for which the verdict and judgment should • be set aside. It is said that the court erred in refusing to non-suit on the motion of the defendant made at the close of the plaintiff’s testimony. This assignment of error proceeds partially on the ground that the sole cause of action charged in the complaint was a wrongful and wanton construction of the new dam and withholding of the water by means thereof, and that [264] there could be no recovery unless malice was shown.' This is a mistaken view of the pleading, the charge being that the defendant “ well knowing the premises, but contriving and wrongfully and unjustly intending to injure this plaintiff in this respect,” erected the new dam-and obstructed and prevented the flow of the water in the manner particularly set forth. This is the formula usually adopted in such cases; and, as every man is presumed to know and intend the consequences of his own acts, the allegations are satisfied by proof of the acts and injuries complained of, without proof of express malice. It is not the intent of the pleading to charge that the acts were wilfully and maliciously done, without express words to that effect; and even where they are so charged, and likewise Wrongfully,; a recovery may be had as for the wrongful act without proof of the wilfulness or malice. Frank v. Avery, 21 Wis., 166, 173. In Twiss v. Baldwin, 9 Conn., 291, which was an action altogether like the present, it was held that if the plaintiff allege that the acts complained of' were done maliciously, wantonly and without any possible benefit to the defendant, proof of malice is not indispensable, there being a perfect cause of action without that ingredient, and it being a well established principle that the plaintiff in an action for a tort need only prove enough of the facts alleged to show that he has a good cause of action. See also Ricketts v. Salwey, 2 Barn. & Ald., 360.
But if proof of malice, or of a wanton withholding or letting down of the water at unreasonable times or hours of the day, were required to sustain the action, it cannot be said there was an entire want of evidence tending to establish it. We refer to the two occasions when it was shown that the water was withheld during the day, and then discharged at night in such. quantities as to flood the floor of the plaintiff’s mill; ■ and to several other occasions when it appeared that the water was stopped on the arrival of customers at the plaintiff’s mill, and when no sufficient explanation or good cause for stopping it was made or shown by the defendant.
[265] It appears from the testimony, that the plaintiff’s pond or reservoir for the supply of his mill is quite small — only sufficient to run the machinery for about fifteen minutes after the gate at the defendant’s mill is shut down; and we infer from the testimony, also, that the same is incapable of being made larger on account of bach water upon the defendant’s wheel. This situation of the plaintiff’s mill, the smallness of his pond, and the impossibility of making it larger, whilst they are circumstances of disadvantage to the plaintiff, for which he has no cause of complaint, and cannot make them the basis of any recovery against the defendant, so long as the latter uses the water of the stream in a reasonable and proper manner, yet they are circumstances which must be taken into consideration in determining what is such reasonable and proper use. If, for example, the plaintiff’s pond were as large, or capable, without too much expense and trouble, of being made as large as that of the defendant, it is very improbable that any complaint of the kind here made would ever have been presented, or that the plaintiff would have suffered any injury from the detention or letting off of the water in the manner shown. In that case the use made by the defendant of the water might not be improper or unreasonable, because, under the circumstances, no injury could come from it to the proprietor of the lower mill.
What constitutes reasonable use depends upon the circumstance of each particular case, and no positive rule of law can be laid down to define and regulate such use with entire precision, is the language of all the - authorities upon the subject. In determining this question, regard must be had to the subject matter of the use, the occasion and manner of its application, its object, extent and the necessity for it, to the previous usage, and to the nature and condition of the improvements upon the stream; and so also the size of the stream, the fall of water, its volume, velocity and prospective rise and fall, are important elements to be considered. The nature and situation of the plaintiff’s mill and pond, the limited capacity of the latter, and [266] the absence of anj means or facilities by which it cpuld be enlarged so as to retain and hold the water of the stream when discharged in quantities larger than its ordinary and accustomed flow or current, were, therefore, circumstances not to be overlooked in determining the reasonableness of the defendant’s use. The defendant had no right to deprive the plaintiff of the ordinary and natural flow or passage of the water in the stream; that is, in quantities as the same would naturally run, longer than was necessary to raise a suitable head for his own. mill, and to propel or run the machinery therein with convenience and profit, such machinery 'being reasonably adapted to the size 0} the stream.
It appears from the evidence that the stream is a small one, with barely sufficient water at ordinary stage to run one millstone and the other necessary machineiy with profit or advantage under sixteen feet head. It also appears that the stream, though small, yet, being supplied by springs, is well maintained throughout the year, and subject to few or no fluctuations in the volume or quantity of water passing, except in times of very heavy rains, or the melting of large bodies of snow, causing freshets. It furthermore appears from the testimony of millwrights and millers, persons familiar with the stream, and having had experience, and who have measured the quantity of water passing in it, that under sixteen feet head it has a power or capacity of only about 30 or 32 square inches of water. The evidence likewise shows that both mills are operated under nearly the same head of water, namely, sixteen feet; but that, while the plaintiff’s wheel is so made as to draw but thirty inches of water, that of the defendant is so constructed as to draw 45 inches, and, when operated with “full gates,” as it frequently is, takes that quantity. The defendant himself testified to having admitted that sueh was the capacity of his wheel; and the same was positively so stated by his own witness, the miller who attended his mill.
We state-these as the facts which the testimony, with little [267] or no conflict, tended to prove; it being, of course, the .province of tbe jury to say wbat tbe facts really were. "We refer to tbem to sbow tbat it was no error to refuse to non-suit, or tbat clearly there can be no reversal on this ground, after tbe proof made by tbe defendant of tbe size and capacity of bis wheel, and tbe manner in which it was operated. Barton v. Kane, 17 Wis., 37, 45. It requires no argument to show tbat here was evidence proper to be submitted to tbe jury, and frdm which, under tbe instructions of tbe court, they might find tbat tbe defendant’s use of tbe water was unreasonable, and consequently unlawful. Tbe language of tbe instruction in this particular, given at the request of tbe defendant, was as follows : “ After be [defendant] has ponded tbe water, be may let it through bis mill, in working it, in reasonable quantities to operate bis mill; and if, in so doing, be increases to some extent tbe velocity and quantity of water at times below tbe mill, when it is in operation, or decreases it at other times when bis pond is filling up, tbe plaintiff cannot complain, unless he uses excessive quantities of water in proportion to the capacity of the stream and bis own mill privilege, or causes an unreasonable detention of it."
It is obvious, under this instruction, which correctly states tbe law, tbat the defendant could not erect bis mill and provide it with machinery requiring, or which might take, one-balf more water to propel it than tbe quantity ordinarily and usually passing in tbe stream, and claim tbe right to withhold and discharge tbe water for tbat purpose, to thé' injury of tbe plaintiff. In other words, no proprietor of a mill can put a forty-five-inch wheel into a thirty-inch stream, under tbe proper bead, and then claim tbe right to- detain and discharge tbe wafer in quantities sufficient to drive such wheel to its full capacity, to tbe injury of other mill-owners below him on tbe same stream. Such a use of tbe water would be unreasonable, within tbe rule laid down in tbe instruction. It is not in proportion to tbe size or capacity of tbe stream, and necessarily involves un[268] reasonable detention of tbe water to obtain tbe requisite power, and then discharge of ■ it in unreasonable or excessive quantities, when tbe power is applied. For these reasons, and in view of these facts, which the evidence tended to establish, as well as in view of the other evidence given, we are of opinion that the motion for a nonsuit was properly denied.
There was no error in overruling the objections to the questions put to the plaintiff as a witness relative to the detention in the flow of the water before the new dam was built, and to the number of years the water had been used in the way described by the witness. These and other similar questions, which were objected to by the defendant, were proper, for the reasons assigned by counsel for the plaintiff in his brief. It was proper that the jury should know all about the manner in which the water of the stream had been used, its volume, power and steadiness, and the amount of work which had been done in the mill of the plaintiff for a series of years before the erection of the new dam and the change of machinery by the defendant in his mill, in order that they might ascertain and determine. the reasonableness of the present use, and whether the plaintiff had been injured or not.
Nor was there any error in overruling the objection to the question propounded to the witness Byren, as to the amount of work the plaintiff’s mill could do if it had a constant supply of water. There was no liability, as counsel seem to suppose, to mistake on the part of the jury as to the amount of work actually done, or which would probably be done, at the plaintiff’s mill, with a constant supply of water according to the size of the'stream, or the usual quantity of water flowing in it. The extent or amount of the plaintiff’s customs as they had existed for several years, and probably would have continued but for the interruptions complained of, were clearly shown; and it was proper to show the capability of his mill with a constant supply of water to do work, in order to establish his probable loss.
[269] The only remaining inquiry arises upon the exceptions taken to the rulings of the court excluding evidence as to the custom or usage among mill-owners upon the same stream, having ponds for the supplying of their mills, to shut their gates and hold the water when their mills are not at work.
Two questions were put "by the defendant for the purpose of introducing testimony of this kind, both of which were objected to by the plaintiff, and the objections sustained. This question has been presented respectively to the courts of Vermont and New Hampshire, and with directly opposite results in each state. In the former, the testimony was held admissible ; and in the latter, not. Snow v. Parsons, 29 Vt., 459; Hayes v. Waldron, 44 N. H., 580, 587; Hubbard v. Concord, 85 N. H., 60, 61.
"Without entering into a statement of the reasons assigned by the court of Vermont for its decision, we say that they seem unsatisfactory to us, when contrasted with those given by the court of New Hampshire in support of the opposite view. The reasoning of the last named court in the case last cited, where the point was upon the admissibility of such evidence upon the question of negligence in failing to keep in proper repair, or properly to construct, a sidewalk, whereby injury was caused, is very clear and satisfactory. As observed in the case first cited from the same court, the questions as to what shall constitute a reasonable state of repair of a highway, and what is a reasonable use of a water-course, are very similar. In the case of a water-course, as already remarked in this opinion, what constitutes a reasonable use depends upon the circumstances of each particular case; or, as the court of New Hampshire expresses it, “ upon a variety of conditions, such as the size and character of the stream, and the uses to which it can be or is applied; "and, from the nature of the case, it is incapable of being defined to suit the vast variety of circumstances that exist; but the rule is flexible, and suited to the growing and changing wants of communities.”
[270] How, upon such a question, the jury, who are to decide it upon the facts and circumstances of the particular case before them, and which is unlike every other, can be aided by evidence of the usage or custom of mill-owners, in other places and upon other streams, whether such usage or custom be right or wrong, is certainly not plain to our minds. It is observed by the court whose rule we adopt, that the jury knowing all the facts and circumstances of the particular case, may be presumed to be already sufficiently informed as to what is a reasonable use of a water course, without proof of usages and customs. It is also observed that the admission of such evidence would be to open an extensive field of inquiry in this and similar cases, upon the same principle, that would tend greatly to increase the expenses of litigation, without affording in general any substantial aid to the jury. This, in our own judgment, is a consideration of paramount importance, which greatly overbalances the consideration of any possible advantages which might be derived from such evidence, if admitted.
By the Court. — Judgment affirmed.