1. The objection interposed by the respondent, after the death of several of the persons who had originally been joined as complainants in the complaint had been suggested, that the remaining complainants could not in the then state of the complaint be maintained, was rightly overruled. The provisions of the statute upon this subject are decisive of the question. It expressly declares that no complaint for the flowing of lands by the owner of a mill shall be abated by reason of the death of any party thereto, but may afterwards be prosecuted or defended by the surviving complainants or respondents, or by the executors or administrators of the deceased. Rev. Sts. c. 116, § 43. This positive regulation is a sufficient answer to the objection, and to the suggestion concerning the supposed difficulties which may arise in the final protection and adjustment of the respective claims of the several parties. If the complainants shall succeed in maintaining their suit, it will be within the authority of the court to direct the entry of the judgment in such form as may be found necessary to secure the rights of all persons who are interested in it.
2. The respondent had no right, under the pleadings in this case, to insist that the complainants should prove their title to the premises described in the complaint, nor were they required to produce any evidence in relation to it. In processes instituted under its provisions, the statute allows any matter to be pleaded in bar, which will show that the complaint cannot be maintained. It is to the issue which is raised upon the pleadings thus authorized, that the trial in court and the evidence produced thereon are to be confined. The respondent availed himself of the privilege to which he was entitled, by pleading the general issue, *182and filing at the same time a specification of defence in which he set forth that he had a right to keep his dam, and flow back the water raised by it, up to the height at which it had at any time been during the whole of the period wherein it was alleged that it had been the cause of injury or damage to the complainants. This specification indicated the only matter of defence upon which he intended to rely, and limited him upon the trial to inquiries concerning, and an investigation of, that question only. He had no right under his plea, restricted as it was by an allegation of a special ground of defence, to insist upon or to avail himself of any other. Rev. Sts. c. 116, § 9. St. 1836, c. 273. Henderson v. Adams, 5 Cush. 611.
3. The testimony concerning the representations of Hale, as to the extent of his claim of right to flow the meadows above his dam, was properly admitted. At the time he made the statements which were put in evidence by the complainants, he was the owner and occupant of the mill and dam; and it is in part through, under and by means of his occupation, and of his exercise of the rights of flowing claimed by him as such proprietor, that the respondent attempted to show that the right to flow the lands above the dam, as alleged in his specification, had been gained by prescription. It was suggested by his counsel at the argument, that there were other meadows above the dam, beside the lands belonging to the complainants, to which it was at least possible that Hale referred in the directions which he gave to the persons in his employment. If this were so, it would afford no sufficient reason for the exclusion of the evidence, but would be only a matter for the consideration of the jury in estimating its value and effect. 1 Greenl. Ev. § 189.
4. The evidence which the complainants were allowed to introduce for the purpose of showing that former proprietors of the mill paid money in the years 1836,1337 and 1838 to owners of lands, other than the premises, described in the complaint, for the purchase, and for the payment of damages occasioned by the flowing thereof, should have been excluded. Such payments for such purposes had no relation to the precise question at issue between the parties. The exceptions do not disclose, nor *183do any inquiries appear to have been made at the trial to ascertain what their rights in relation to those other lands respectively were. And without such explanation it is obvious that these payments could have no tendency to prove what was the height of the dam in the year 1823, or whether it had subsequently been in any manner changed. These facts would only show that certain landowners claimed compensation for some injury alleged to have been occasioned by the inundation of their lands, and that their claims were acquiesced in and submitted to by the proprietors of the mill; but would afford no evidence, either of the degree of damage actually sustained, or of the height of the dam by which it was produced. Even if it was as high in 1823 as it was when those purchases and payments were made, or as it has been at any subsequent period, it is not pretended that the respondent had at that time acquired a prescriptive or other right to flow the lands of the complainants by means of a dam raised to that height. If any one of the complainants had as early as the year 1838 required the payment of compensation for damages caused to their lands by the maintenance of such a dam, it is perfectly clear that the defence now interposed and relied on could not have been resorted to; for if the respondent has any such right as that upon which he insists, it has been acquired by an uninterrupted adverse occupation, which commenced before, and has been perfected only by long subsequent enjoyment.
5. The testimony of the witness, by whom the execution of the deed from the heirs at law of Butterfield to the former proprietors of the mill, introduced by the complainants, was proved, which was offered by the respondent to show that the flowing mentioned in that deed was caused by increasing the height of the dam in 1823, should have been admitted. The respondent contended that the dam had never been increased in height at any time subsequently to that year. But this deed from the heirs of Butterfield might, if the description contained in it was left unexplained, have been considered as affording some evidence that the height of the dam was increased at a later period ; and that it was this increase which caused the damages for which *184payments were made annually during the life of Butterfield, and for the release of any future claims to which that deed was executed. It was therefore clearly within the right of the respondent to show that all those damages were caused by the dam just as it stood in 1823, and not at all by any addition which was subsequently made to it.
6. The evidence as to the observations made and the tests applied to ascertain the effect of the causeway in the interruption of the passage of the water, and the consequent flooding of the lands above it, though after it had been raised more and higher than it had formerly been' constructed, and since the institution of this suit, should have been admitted. It would very plainly be directly applicable to the subject of inquiry involved in the issue, if the respondent should also show how much the causeway had in fact been raised in height, because, upon that proof, a comparison could readily be instituted as to its effect both before and after its increase. And this, though it is not sti expressly asserted in the bill of exceptions, but only results by implication from its statements, we understand to ■have been the purpose of the respondent; and it is in this view that the ruling by which the evidence was rejected is held to be erroneous.
7. The report of the committee appointed by the owners of the meadows bordering on the stream, and the evidence of their action in clearing out the brook in 1832, which were offered by the respondent, were wholly irrelevant to the question upon which the parties were at issue, having no tendency to show that any change had been made in the height of the dam since 1823, but only that the owners attempted to prevent their lands from being injuriously affected by water raised by it in its then existing condition.
8. The ruling that the declarations of Whipple, made under the circumstances stated in the bill of exceptions, were admissible, was erroneous. At the time when he had the conversation of which testimony was allowed to be given to the jury, he had no interest of any kind in the mill or dam or lands above it It is true that he has now taken upon himself the defence of *185the suit, and has become responsible to the respondent for whatever judgment may be rendered in it against him. But the principle which makes the admissions of persons, not parties to the record, yet interested in the event of the suit, competent evidence, restricts the proof to such statements and declarations only as were made at times when they had some interest in the matter in controversy. 1 Gréenl. Ev. § 180. Applying this restriction to the evidence of the declarations of Whipple, it is obvious that those which were proved, having been made before his interest accrued, were inadmissible and should have been excluded.
9. The respondent has no cause of complaint, which he can now be allowed to urge, against the instructions given to the jury in relation to the time within which a right to flow the lands of the complainants could have been acquired. He made no objections whatever upon the subject at the trial. He did not then suggest any dissatisfaction with those instructions, or request any modification of them by the court. This silence must be taken to have been intended as a signification of his acquiescence in the correctness and propriety of the rule as applicable to the facts in evidence and the course of proceeding on the trial. But even if this were otherwise, the instructions, when considered in that view, were we think sufficiently full and explicit, and well adapted to the question at issue which was submitted to the jury.
Some part of the rulings of the court, objected to by the respondent, being erroneous, the exceptions must be sustained, and a New trial ordered.