This was a complaint made to the court of common pleas, by the complainant, to recover damages of the respondent, occasioned by the flowing of the complainant’s land in Stow, by the respondent’s mill-dam, erected and maintained over a brook there situated.
*206It was argued on the part of the complainant, as if the complaint in the present case were a process to obtain an increase of damages, and that the only question open was, whether the complainant was entitled to an increase of damages. But in looking at the complaint, it appears not to be a proceeding of that character. A complaint for an increase of damages, under Rev. Sts. c. 116, § 33, must set forth a former judgment between the same parties or their predecessors, fixing a sum to be paid for annual damages, by the mill-owner to the land-owner, and demanding an increase of the annual damages thus assessed. But no such judgment is set forth in this complaint, no such award of damages to be paid annually is suggested. And indeed, if we look at the judgment, between the predecessors of these parties in 1810, hereafter referred to, it will appear that no annual damages were awarded. The small sum given, and that by consent of parties, was for past damages. This proceeding, therefore, is to be treated as an original complaint, and the rules of law applied accordingly. If then, this was an original complaint, the court are all of opinion, that, if the respondent had kept up and maintained his dam, so as efficiently and substantially to raise the water to the same height, to which the present dam raises it, without payment of damages, it is evidence from which a presumption arises, that he has, by release, satisfaction, or otherwise, acquired a title so to continue and maintain his dam, as a legal right, without payment of damages. It is evidence from which the law draws an inference of a lost or nón-appearing deed, release, receipt of payment of gross damages, or other legal act done, which will be a bar to any future claim of damages, for flowing to the same height, by means of the same dam.
Nor does the judgment of this court in 1810, which was offered in evidence by the complainant, have any tendency to rebut this legal presumption. It merely shows, that prior to 1810 the predecessor of the complainant, had sustained some damage," by the dam of the predecessor of the respondent. But there was ample time between 1810 and 1850, when this complaint was commenced for the legal presumption of pay*207ment of gross damages, or a release of damages, to arise, that term of time being now fixed at twenty years. And it does not appear, that any damages were paid or claimed, or any complaint filed, from the entry of that judgment to the commencement of the present process. Indeed, as mere matter of evidence, it would seem probable, that a final adjustment was made at the time that judgment was rendered. A sheriff’s jury had been sent out by a warrant from the court of common pleas, who returned a verdict, which was not accepted by the court, but set aside. The right was then put in issue in the court of common pleas, tried at the bar of that court, and found in favor of the complainant, but no damages awarded. It was then brought into this court by appeal, and then, without trial, it was adjusted by compromise, by a judgment for a small sum by consent. If then, no new complaint was made, and no new claim for damages, it would seem to be strong evidence, either that the parties then agreed that that judgment, which embraced no provision for future damages, should be a final adjustment of the controversy, or that some other agreement was made, or act done, by which all claim to future damages should be released. But whether it was so or not, the lapse of twenty years next before this complaint brought, without payment or claim of damages, does raise a presumption of a grant or release, which is a good bar to such a complaint.
It appears to this court, that the directions given in the case by the court of common pleas, were correct and accurate It appears by the exceptions, that the respondent offered evidence to show, that he and those, under whom he claimed, had flowed the said land as high and no higher than it was flowed, for more than twenty years last past, and had paid no damages for such flowing, and claimed a right thus to flow, without the payment of damages, by prescription. But the complainant asked the court, among other things, to instruct the jury, that said judgment was an answer to any such claim, which the court declined, but ruled that the right of the respondent is, to keep up the water as high as it will be raised by a dam of the same height as the former dam, *208which he and those under whom he claims, kept up and maintained for a period of twenty years, before the commencement of the flowing complained of: that is, that he had a right, during the time, in which the injury is alleged to have been committed, to keep up and maintain a dam, of the same height, as that which he and those under whom he claims, kept up and maintained for twenty years before the commencement of the injury complained of, although the water may thereby be kept up more uniformly and flooded to a greater height, than by the former dam, and the land of the complainant be flooded for a longer period of the year, than before. This instruction was substantially in conformity with the rule laid down in Cowell v. Thayer, 5 Met. 253, and the court are of opinion, that the rule was rightly laid down in that case, and confirm it. The case of Cowell v. Thayer may require some slight modification in particular expressions, to avoid being misunderstood, but we think it is substantially correct. It is not the actual height of the dam, which will regulate the prescriptive right of the party holding it, but its efficient height, according to its structure and operation, to maintain the height of the water, when in repair, and in good order; and although the water actually raised by it, may to some extent vary from one season, or one year, to another, owing to the tightness of the dam, the mode of using the water, the different seasons, as being dry or wet, and the like, yet these considerations are too variable and uncertain, to be adopted or relied on, as the basis of a right acquired by grant or prescription. We think, therefore, the efficient height of the dam, in its ordinary action and operation, measures and limits the claim of the mill-owner, to raise and appropriate the mill power of the stream; and the adverse, continued, peaceable, and uninterrupted use and enjoyment of the privilege, according to such claim, is evidence of the acquiescence of all other riparian proprietors, who would have a right to question and contest such claim, and, therefore, constitute that right in the stream by prescription, which would be the result of a grant from all such other proprietors in the stream.
*209Being thus of opinion, that the directions were correct in matter of law, the court would have felt bound to overrule the exceptions, and render judgment on the verdict, but for one consideration. It appears by the exceptions, that at an early stage of the trial, the complainant produced and offered in evidence, an office copy of a judgment in the supreme judicial court for this county, April term, 1850, between Ezekiel Gates, whose land the complainant has, and Marshall Spring, who had erected a dam which the respondent now maintains and keeps up, in favor of the complainant’s ancestor, against said Spring, for damages to the land by flowing. The complainant offered it for a special purpose, and the court ruled that it could not be admitted for any such purpose. As we understand the exceptions, the evidence thus offered was absolutely rejected, and not admitted for any purpose. Now, as the copy was competent evidence of the record of the judgment, and as the judgment was between parties to whom these parties respectively were privy in estate, the judgment was competent evidence to go to. the jury; the effect and operat-on of it to be subject, of course, to comment and direction by the court in point of law. For this reason, the court are of opinion, that the verdict must be set aside, and a new trial had in the court of common pleas. At the same time it is proper to add, that unless a very different case can be made on another trial, we should be of opinion that a verdict for the respondent would be in conformity with the rights of the parties. Verdict set aside