The complaint states a cause oí action in trespass. The natural construction of the complaint would be that plaintiff was owner, in fee, of the mill-dam, and that the entry was illegal, aggravated by the destruction of the dam. On the trial it appeared that the fee of the dam was vested in the defendant, and that plaintiff was entitled merely to the use of the dam to gather water, with the right of free access thereto.
The cause of action proved was, therefore, not a trespass upon plaintiff’s land, as averred in the complaint, but an injury to the plaintiff, resulting from the defendant’s act upon his own property. The complaint did not contain the necessary averments to maintain any other action than that of trespass, and the plaintiff did not seek to have it amended. Whether, under the circumstances, the complaint should have been dismissed, or in case no surprise was shown, the cause should proceed, and the pleadings be conformed to the proof, was largely in the discretion of the judge at circuit. We are of opinion that his exercise of this discretion cannot be called unwarranted, and the order appealed from is, therefore, affirmed.
, Order affirmed.