(concurring.) I see no sufficient reason for granting a new trial in this case. The plaintiffs, to recover, must establish by proof that their rights have been injuriously affected by the construction of the defendant’s dam. • This proposition the trial court held that they had failed to maintain. The only evidence on the part of the plaintiffs which is claimed to establish it is the fact that immediately after the construction of the defendant’s dam the water rose at the plaintiffs’ lower mill. The reason for this is not explained in the evidence. The undisputed evidence is that the difference between the height of the surface of the water at the tail-race of the plaintiffs’ lower' mill and at the top of the defendant’s dam was about 12J feet. The distance between the dams is about 12,000 feet, and defendant’s dam is about 945 feet long, and the depth of the water as it passes over its. top varies from 5 inches to 5 feet. There is therefore a difference in height at the time of highest water of 7|- feet. There is a substantial agreement"of all the witnesses as to the distance between the dams, and the fall from plaintiffs’ to the defendant’s in the river-bed; and no witness has undertaken to swear that water would pile up so as to rise above its common level sufficiently to overcome this 7J feet elevation of plaintiffs’ tail-race above the top of the water at highest flood on defendant’s dam. To hold that the water from the defendant’s dam, upon these facts, could set back so as to interfere with the free flow of water at the tail-race of the plaintiffs’ lower mill would seem to reverse all well-known principles governing hydraulics. If the physical facts upon which this case must turn could be changed by further testimony, then there might be some reason for granting a new trial. But the elevations at the different points have been ascertained, and there is no dispute about them. They cannot be altered on a new trial. The natural laws governing the flow of water are quite as unchangeable, and with these material and controlling factors in this case the same result must follow on a new trial as has already been reached by the trial court. It is true that no explanation has been furnished for the somewhat remarkable coincidence of the rise of the water at the tail-race of the plaintiffs’ mill at the time of the erection of the defendant’s dam, but, unless it is traceable to some natural cause connected with and arising out of the erection of the defendant’s dam, we cannot assume, as against well-understood physical laws governing matter, that it was produced by water setting back from this dam. At all events, the burden is upon the plaintiffs to establish that proposition if true, which they *657have failed to do. There is no claim on this appeal that a new trial should be granted on the ground of the newly-discovered evidence. 1 think, therefore, that the judgment should be affirmed. Judgment affirmed, with costs.