Williams, J.
The defendants claim anew trial, because the declaration contains no allegations sufficient to support the verdict; and that the proof does not support those allegations, They also claim, that the charge was' incorrect, in omitting to express opinions to the jury on some points, and in expressing incorrect opinions on others.
Is the declaration sufficient ? The first count shews, that tiic plaintiffs had, and of right ought to have, certain buildings and a manufactory and a water-course leading thereto, by a race-way; and that the defendants wrongfully and maliciously prevented the water from running to them, by unreasonably .penning back the water, and causing it to flow down in the night, and at such times as the plaintiffs could make no use of it; whereby they lost the use of their manufactory, were hindered in their business and deprived of the gain they might have made.
The plaintiffs have shewn a right in themselves, an injury by the defendants, and a loss sustained by them in consequence. These allegations would have been sufficient, had there been a demurrer: of course, this declaration can be sustained after verdict. Indeed, the principal objections vrere to the second count; and that is unimportant, if the opinion about to be expressed on the next objection, is correct.
Is there such a variance between the proof exhibited and the allegations, that the plaintiffs cannot recover ? It is said, that the plaintiffs have set forth a prescriptive right; and must, therefore, prove it.
The claim in the declaration is, that on the 28th of June, 1830, and ever since the plaintiffs had a clock manufactory on a stream called the Harbour, and that they had right to use and employ the water of said stream, and that the same should flow, without interruption, over and through their land and in their race-way to their manufactory, in a convenient and customary manner, according to the natural and usual flow of said stream, and without the hindrance of the defendants or any other persons.
This, it is said, is a presumptive right, which must be precisely proved. The claim is to the enjoyment of the water in convenient and customary manner; but whether that [310] ⅛.(0 be proved, by occupancy, or grant or prescription, does arid need not, appear. 1 hat the right is set out as prescriptive rights formerly were, (Luttrel's case, 4 Co. 84.) or as they. now are in a plea, (Am. Prec Dec. 200.) will not be claimed. But, it is said, that the words cur rere solebat et consuevit, are considered as equivalent to setting out a title by prescription. Surry v. Piggot, Poph, 171. Hebblethwaite v. Palmes, 3 Mod. 52. Tenant v. Godwin, 2 Ld. Raym. 1094., It is true, that in support of a verdict, where these words were found in a declaration, the court would presume that a prescriptive right was proved under them ; but it does not follow, that they would have been so considered, had the objection been made under a demurrer. Indeed, Lord Holt, whose opinion has been relied upon, in Rosewell v. Prior, 1 Ld. Raym. 392. S. C. 2 Salk. 459. held, in a prescription for ancient lights, that the words consuevit et debuit would not be sufficient upon a demurrer. As it is now settled, that bare possession is sufficient to support an action of this kind, (Anon. Cro. Car. 499.) there is no necessity to set out a prescriptive right; much less is it necessary to presume, that it was intended by these words to set out such a right, for the purpose of defeating the plaintiff, by supposing a variance to exist between the allegations and the proofs.
This declaration is much like the form now used in England, founded on possession, where it is intended to avoid the preciseness required in setting out a prescriptive right. Williams v. Moreland, 2 Barn. Cres. 910. (9 Serg. Lowb. 269.) Sheers v. Wood, 7 J. B. Moore, 345. (17 Serg. & Lowb. 76.) Liggins v. Inge & al. 7 Bing. 682. (20 Serg. & Lowb. 287.) I think, therefore, the plaintiffs were not bound to pYove a prescriptive right.
It is said, however, that as the plaintiffs have set out a right to the use of the water, according to its natural course, and without interruption, this is descriptive of their right and must be proved. It is true, that no allegation descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected; as it would tend to mislead the party. Thus in trespass, where gn abuttal is misdescribed, it is fatal; for there the action is local. Drewry v. Twiss, 4 Term Rep. 559. So, if a person is charged with stealing a white horse, proof that he stole a black one would not support the information. In this case, however, this does not seem to be intended as a [311] description of the plaintiffs’ right, any more than in Ricketts v. Salwey, 2 Barn. & Ald. 360. where the plaintiff declared, that he was possessed of a certain messuage, and divers, viz. 150 acres of land, with the appurtenances, in the parish of A.B., and by reason thereof, he ought to have, and still of right ought to have, common of pasture in and upon said messuage and land in and upon a certain waste, called the Wheat Common, &c. At the trial, it appeared, that the right was claimed in respect of Ashford Hall and the land usually held with it; on which issue the plaintiff failed, it also appeared, that he was possessed of land within the parish in respect of which he was entitled to a right of common, on which there was no mes- ; and it was held, that if the plaintiff proved part only, he was entitled to recover. Best, J. said : “ That in cases of contract and prescription, the allegation must be provedas laid ; but that rule is not applicable to cases of tort, where the right is merely inducement to the action. In this case, the plaintiff is entitled to judgment, if he has a right of common, and that right has been disturbed, by the defendant. Now, he has stated a right in his declaration, and has proved the same right in part, by his evidence ; and I think that is sufficient to entitle him to damages pro tanto.” (p. 367.) Holroyd, J. said : M It is quite enough, in cases of tort, if you prove the same ground of action laid in the declaration, although not to the extent there stated ; and in such cases, the court will give judg-meat as if the declaration had been originally confined to the action proved. In Cases of contract and prescription, it is different; for in the former, if all that is stated in the declara* tion be not proved, it is proof of a different contract and a different ground of action. In the latter case, where a prescription is alleged in bar, it is one entire thing, and must be proved as laid. In the present case, the declaration does not allege any prescription, but states, that the plaintiff was possessed of land and a messuage, and that he ought in respect of them to have a right of common. Now, the proof given is not of a different allegation, but of the same allegation in part; and that is sufficient.” (p. 366.) The reasoning in that case seems to me to be applicable to this. The plaintiffs have not proved all that they have alleged; they do not prove their right to the extent they have stated it; but they prove a right, and that they have been disturbed in the enjoyment of it. The proof, then, is not of a different allegation, but of the same al[312] legation in part. That proof of part of the essential allegations in an action founded on tort, is sufficient to support the action, ⅛ certainly true. 1 Chitt. Plead. 373. Ca. temp. Hardw. 121. And he need not even prove the same title. Bul. N. P. 76. And although in trespass he declares that he is seised and possessed, proof of possession is sufficient. ‘
Here the plaintiffs declare on a right to the use of this water without interruption ; yet they also state, that the defendants have a dam above, which, of course, must form some interruption. Of this, however, they do not complain, but that they have unreasonably penned and stopped the water. The unreasonable detention, then, is the burden of complaint; and if the allegation respecting the natural course of the stream, or the right to enjoy it without hindrance or interruption, were stricken out, it would not affect the plaintiffs’ right to recover. Looking, then, at the nature of the action, and the technical character of the objection, the objection must be overruled, and there is no variance, w'hich ought to affect the claim of the plaintiffs in the first count of this declaration.
The next objections to be considered, are those made to the charge. These were of two classes — on account of omissions and misdirections.
As to the former, the plaintiffs claimed, that by the deed of Asahel Baldwin, one of the defendants, they acquired greater privileges in this stream than if the deed had been from a stranger. They also claimed, that the defendants had no right, either by caulking or tightening their dam, to diminish the leakage in it, how short time soever such leakage might have existed ; and also, that the defendants should grind only at such hours as would accommodate the plaintiffs. It is true, that the court did not consider or discuss these claims severally ; but they were all disposed of in the general instructions given to the jury, that the defendants, having an ancient mill, had a right to use the stream in the usual and accustomed manner. This clearly implied, that they had all the right that immemorial usage could confer, and, of course, disposed of all these claims, (some of which were rather suggested than urged) in a manner of which the defendants cannot complain ; for the defendants had not claimed, and could not claim, any great- or rights than immemorial usage could confer. The defendants did indeed claim, that their right, thus acquired, was a right to do with the water what they pleased, to retain it as [313] long as they should choose, and to let it off jvhen and how they pleased ; in short, that they could be restrained by no rule but their own pleasure. The court proceeded upon the ground that the defendants had all the right which prescription could confer; — perhaps all the right which could, in any way, be transferred to an individual to the use of a running stream.
Still a question arises, what is the extent of this right ? The defendants claim not only a right to use it themselves, but to deprive others of the use of it; not only to enjoy it, but to ex* elude the participation of others. Now, this right to water being a common right, the individual who claims to appropriate it to his own use, must shew a right superior to others.
These defendants claim a right by immemorial usage, or a prescriptive right. But prescriptions are founded on grants, which are supposed to be lost; and nothing can be prescribed for but what may pass by grant. 1 Vent. 387.
What, then, may we presume was the grant of this water to the defendants ? They do not claim, that they had right to stop the water entirely, but to use it as they pleased. Suppose they had pleaded they had a right to stop the water, not for the use of their mill, but to prevent the use of it for their neighbour’s mill; would such a grant have been presumed I The defendants only proved, that they had a right to use the water for their mill according to their convenience and judgment. This certainly does not prove, that they had a right to use it according as caprice or malice may dictate, without regard to the rights of others. A right, to use merely, cannot confer a right unreasonably and unnecessarily to prejudice the rights of others.
It is said, by one whose word has been pronounced to be law, that an action on the case does not lie for the reasonable. use of my right, though it be to the annoyance of another; (Com. Dig. tit. Action upon case for a Nuisance, C.) clearly implying, that such an action will lie for an unreasonable use of one’s right. Thus, if one carry an unreasonable weight, with an unusual number of horses, on a highway, it is a nuisance. Com. Dig. tit. Chimin. A. 3. So if the house of two tenants in common or joint-tenants be ruinous, a writ dé reparations facienda lies against him, that will not repair. Fitzh. N. B. 127. Co. Litt. 200. So if the house of A. be near the house of A, and A. suffer his house to be so ruinous that it is [314] like to fall upon B.’s house, B. may have a writ de domo repar anda; or, on special damage, an action'on the case. Co. Litt. 56. a. and n. 375. by Harg. So an action lies against him, who corrupts the air, by noxious trades. Hutt. 136. 9 Co. 59. Cro. Car. 510. 2 Ld. Raym. 1292.
These defendants can claim no better right to use this water than the wagoner to use the public highway ; or than the butcher or tallow chandler to exercise his trade ; or the owner of a ruinous house, to suffer it to decay: and if in those cases the salutary maxim sic utere tuo ut alienum non Icedas, applies. I see no good reason why it should not apply to the case before us.
The defendants wrere not deprived of the exercise of a right to use this stream, in such a manner as convenience, or ah honest judgment w'ould dictate ; nor did the prilil^ples adopted by the court below, tend to deprive them of any Ua« beneficial to themselves; but they did tend to prevent 1 m, i ndcr colour of right, from injuring others. ,™
The right to the use of water, as well as of air, being a com™ mon right, must be exercised in a reasonable mumper. ‘ ■“•The elements being for general and public use,” says Thompsdh, Ch. J.j “and t|ie benefit of them appropriated to individuals, by occupancy only, this occupancy must be regulated and guarded with a view to the individual rights of all, who have an interest in their enjoyment.” Platt v. Johnson & al. 15 Johns. Rep. 213. 218. The objections, therefore, to the charge} on this ground, cannot be sustained.
The defendants also claimed, that as they have not raised their dam, no action will lie ; and that the injury cannot be ascertained in any other way ; for any other mode will be so uncertain as to encourage litigation; in support of which they cited a dictum of Heath, J., in Alder v. Savill, 5 Taun. 461., that keeping the water penned up for a longer time than usual} would not entitle the plaintiff to recover, if it were not penned up higher than usual. In that case, the mill-owner, tightening his gates, and applying the water to the use of his mill, in the best manner, did not draw it off from the plaintiffs land, so soon as it was drawn off, when the mill was much out of repair. So far from doing the act to injure his neighbour, the defendant was attempting to apply the water, in the best manner, to the use of his own mill *, and the remarks of the [315] judge might be very proper upon that state of facts, but were not intended as a general rule, that no action would lie for an injury done by water, except in consequence of raising a darn. To make that the only test of damage, would be to adopt a principle wholly inadequate to do justice, except in a single case ; and this, to discourage litigation. Litigation, as such, is certainly not to be encouraged ; but yet it will hardly do to adopt a rule, which will leave many injuries without redress, through fear of litigation. There is an evil worse even thap that: it is the want of protection by law, and the consequent evil of self-redress.
As to the uncertainty of determining the nature of the injury, except in this way, those who have often attended such trials, will testify, that it is often as difficult to ascertain w'hether a dam has actually been raised, as to ascertain the motive which leads to it. In the case of Stiles v. Hooker, 7 Cowen 266. 268. the court say, that it is not the height of the dam, but the height of the water, which does the injury. Of course, it is not the height of the dam, which is the ground of action.
It was also objected, that the declaration alleges, that the act was done maliciously; and unless malice was proved, the plaintiffs could not recover ; but the jury were instructed, that if the act was done wantonly, or needlessly, or maliciously, the plaintiffs might recover.
To determine the propriety of this charge, we must revert to the declaration. It alleges, that the defendants, minding and intending to injure the plaintiffs, and deprive them of the use of said stream of water, and to render their manufactory useless, wrongfully, maliciously, and injuriously, have deprived the plaintiffs of the use of said water, by unreasonably penning and shutting back the same. The plaintiffs state their right; and the injury done by the defendants’ act, by unreasonably depriving them of the use of the water, that is, by penning and shutting it back, without any beneficial purpose to themselves. The gist of the action is the unreasonable or wrongful conduct in diverting and obstructing the water, to the injury of the plaintiffs. Whether this act was done wantonly or maliciously, or without any possible benefit to themselves, it was evidence of an unreasonable use of the water, and an unreasonable, or wrongful exercise of their privilege ; and the injured had a right of satisfaction.
[316] The allegation that it was done maliciously, seems to me to wholly unnecessary, and, if stricken out, would not affect the right of action. And upon well established principles before alluded to, the plaintiff in an action for a tort, need only prove enough of the facts alleged, to shew that he has a good cause of action. Thus, in an action on the warranty on the sale of a horse as sound when he was unsound, and the defendant knew that fact; the scienter need not be proved, and may be stricken out. Williamson v. Allison, 2 East, 446. There the knowledge, and here the malice, may tend to aggravate damages; but there is a perfect cause of action without those allegations. And though it may be adviseable, in aggravation of damages, to state a malicious intent; yet, if it be unnecessarily stated, it need not be proved. 1 Chitt. Plead. 377.
It is said, that in Panton v. Holland, 17 Johns. Rep. 92. 98. a different doctrine was advanced. There, an action was brought by the plaintiff against an adjoining proprietor, for digging so near the foundation of his house as to undermine it; alleging, that he did this maliciously, intending to injure the plaintiff. The defendant claimed, that it was a case of malfeasance, not of nonfeasance; and that no evidence of negligence or unskilfulness could be admitted. The judge who delivered the opinion of the court, said, that “ if the act was stated tc be done maliciously, it would have been a case of malfeasance, an injury distinct in its nature from a case where damages are claimed, on the ground of negligence or unskil-fulness, or that the act complained of does of itself subject the party to damages, though done with the greatest care.”
In the case before the court, the damages are not claimed for negligence or unskilfulness, but for an unreasonable exercise of an act lawful in itself; and that act is the same in its effect upon the plaintiffs, and as entirely useless to the defendants, whether it was wanton, malicious, or merely needless. The act, then, being the same, and the effect the same, and there being no reasonable excuse, the cause of action must be the same in one case as in the other, though more or less aggravated, or extenuated, according to the degree of malice proved to nave existed. And while I admit, that no man is answerable in damages for a reasonable exercise of a right, where it is accompanied by a cautious regard for the rights of others, where [317] there is no just ground for the charge of negligence or un-skilfulness, and where the act is not done maliciously, I am warranted, by the opinion of the same judge who delivered the opinion in the case above cited, in saying, that for an unreasonable .exercise of his right, unaccompanied by a cautious regard for the rights of others, a party is answerable. If then, the defendants did the acts charged wantonly, maliciously, and withoat-any useful purpose to themselves, it was an unreasonable exercise of their rights. //
As to the objection that these defendants were not answerable for the acts of their tenants, if such tenants acted by their advice, consent or concurrence, — I know no principle of law under which they can shield themselves, any more than if the tenants were merely servants.
I do not, therefore, advise a new trial.
The other Judges were of the same opinion.
New trial not to be granted.