The principal controversy in this case arose over two questions: First, whetherthedefendant wrongfully interrupted and improperly interfered with the plaintiffs’ use of their water-power, by retaining the water in defendant’s dam during the day-time on week-days, and then discharging it onto the plaintiffs’ premises in large and unusual quantities, in the night-time and on Sundays, when it could not be utilized by the plaintiffs in operating their mill and machinery; and, second, whether the plaintiff Horace P. Hoyt *340had erected a dam that was higher than that which existed when he purchased the premises now owned by the plaintiffs, and thus overflowed the defendant’s premises to a greater extent than they were overflowed by the water collected in the previous dam, or to a greater extent than he had a right to do. The former arose under the allegations of the complaint; the latter, upon the counter-claim set up in the defendant’s answer. As to the defendant’s counterclaim, the court found osa fact that the water did not flow back lathe plaintiffs’ premises to any greater extent than it did at the time the plaintiff Horace P. Hoyt acquired the ownership of the lower mill property. If this finding is upheld, it follows that the defendant’s counter-claim was not established, and hence he was not entitled to the affirmative relief asked for in his answer. We have carefully read the evidence bearing upon this question, and, while it was conflicting, it was sufficient to sustain the finding of the learned trial judge. As this was a question of fact, and as the finding thereon was fairly sustained by the evidence, there is nothing in this branch of the case which would justify us in disturbing the judgment.
Upon the second question, the court also found with the plaintiffs. It in substance found that between February 1,1886, and February 22, 1887, the defendant, while using steam-power to operate his mill and machinery, frequently collected the water of such stream in his pond, detained it during ■the week-days, and discharged it in floods into the stream during the nighttime and Sundays, so that it could not be used by the_plaintiffs to propel their mill and machinery below; and that he thus interrupted and materially interfered with the plaintiffs’ use of their water-power; that it was done persistently, for the purpose of injuring and destroying the plaintiffs’ use of the water of such stream; and that the plaintiffs sustained damage by reason thereof in the sum of $200. The findings of the court upon this question were amply sustained by the evidence. Assuming the facts as found, it is quite manifest that the plaintiffs were entitled to the relief awarded. Merritt v. Brinkerhoff, 17 Johns. 306; Pollitt v. Long, 58 Barb. 33; Clinton v. Myers, 46 N. Y. 511; Bullard v. Manufacturing Co., 77 N. Y. 525; Thomas v. Brackney, 17 Barb. 654; Thurber v. Martin, 2 Gray, 394, 396; Chandler v. Howland, 7 Gray, 348, 350; Gould v. Duck Co., 13 Gray, 451; Davis v. Getchell, 50 Me. 602; Gerrish v. Manufacturing Co., 30 N. H. 478, 483. The court adopted the correct rule of damages, and the proof justified the amount awarded.
But it is claimed by the appellant that the court erred in admitting evidence as to the manner in which the defendant used the water prior to the time when such wrongful acts were alleged in the complaint to have been commenced, and subsequent to the commencement of the action. An examination of the appeal-book discloses that this evidence was admitted only for the purpose of obtaining a correct history of the whole transaction between the parties, and of enabling the court to determine whether the defendant’s acts were such as ■would justify the court in granting the injunction sought. The court expressly held that the plaintiffs could only recover such damages as Were sustained between the dates alleged, and that no amendment of the pleadings would be allowed. The admission of this evidence, when limited to the purposes m'entioned, constituted no error that was prejudicial to the defendant, or that would require a reversal.
ISfor do we find any error in the admission of the evidence of the witness Jackson Briggs to the effect that Jason Clark, the then owner and common grantor of the parties, went down with him and showed him how high to build the rack and attach it to the sill, so that the flood-wood would run over the dam before going into his.raek. Clark was then the owner of both premises, built the dam where the plaintiffs’ dam now stands, and transferred to the plaintiffs the right to maintain a dam equal in height to the one then erected by him. This evidence ténded to show that the plaintiffs’ dam was not as high as that erected by Clark, and hence that the waters collected in it would *341flow back to a less extent than from the old dam. We think the evidence was admissible.
The plaintiffs were also permitted to prove by the witness Briggs that, while Clark owned both mills, the water was used in such a manner at the upper mill as to enable it to be used and husbanded for the purpose of running all the mills, the lower as well as the upper. The defendant objected to this evidence on the ground that it was incompetent and leading,—“the witness should describe the manner of using the water.” This objection was overruled, and the defendant excepted. We do not think the exception was well taken. The evidence was admissible in explanation of evidence drawn out upon the cross-examination of the witness, as to the manner in which these mills were used by Clark while he was the owner of both, and the court, in its discretion, had the right to permit a direct question, although leading. We think the findings of the court were sustained by the evidence; that the judgment awarded was proper; that there were no rulings that require a reversal; and that the judgment should be affirmed. Judgment affirmed, with costs.
All concur.