It was settled in Hill v. Sayles, 12 Met. 142, that a suit at common law might be maintained by the owner of land for damages occasioned by a millowner’s maintaining his dam contrary to the conditions and restrictions imposed by the verdict of a jury under proceedings duly had according to Rev. Sts. c. 116.
We think the same effect is to be given to an award of arbitrators appointed by the parties to determine their respective rights and duties in relation to the maintenance of a dam and the flowing of land, where it appears that full authority has been conferred on the arbitrators to exercise all the powers with which a court and jury are invested under the mill act, and the arbitrators have performed the duty incumbent on them, and made an award on all matters which could properly be comprehended within the verdict of a jury.
Such was the nature of the submission and award in the present case. The arbitrators were in express terms clothed with all the power of a court and jury under the statutes of the Commonwealth relating to the support and regulations of mills; and they made their award for past damages; for the amount of annual damage to be paid by the defendants; and also fixed the height to which the defendants should have the right to keep and maintain their dam during the entire year. These were all the matters which could be properly drawn in controversy before a jury, between the plaintiff as an owner of land, and the defendants as owners of the dam which caused the land to be overflowed, and they are fully covered by the award of the arbitrators. This award is conclusive upon the rights of the parties. It measures and defines the extent of the defendants’ right to maintain then: dam under the statutes. So long as they do not exceed the limits fixed and established by the award for the height of their dam, they are not liable to any action at common law. But if they go beyond the prescribed height, then they lose the immunity from suits at law provided by the statute, and are liable to an action for damages as wrongdoers.
When the parties agree to substitute an arbitration at common law in the place of proceedings under the statute for the *446regulation and support of mills, for the purpose of adjusting and determining their respective rights and duties, an award duly made must be deemed a bar to any claim by the owner of land to maintain a complaint under the statute for the matters comprehended within the submission and award. Conventio vincit legem.
In the present case, if the plaintiff had brought his petition under Rev. Sts. c. 116, for a jury, the defendant might well have pleaded the submission and award in bar, under § 8, which expressly provides that the defendant may plead in bar of a complaint that he has a right “to maintain his dam for an agreed price.” The bar or estoppel must be mutual. Therefore when the landowner brings his action at law for damages for raising the dam above the height fixed by the award, and the millowner objects that an action at law will not lie, and that a complaint for flowing land is the only remedy, the answer is sufficient, that the height of the dam has been fixed by an award which is binding on the parties, and that an action will lie because the millowner has exceeded the limits prescribed to him and cannot justify under his right as fixed and established by the award.
The same reasoning, which justifies the conclusion that the common law remedy in favor of a landowner is not taken away in cases where it can be shown that the millowner has not conformed to the restrictions and conditions, as to the height and maintenance of his dam, prescribed by the verdict of a jury, leads to the same result where the same matters have been properly adjudicated between the parties by a submission and award. In the present case the sole cause of action is founded on the fact that the defendants had raised their dam above the height fixed by the arbitrators, and there was no suggestion that this increased height was occasioned or rendered necessary by the erection of a new mill or the use of any new machinery by the defendants, requiring greater mill power than that which was employed by them when the submission was entered into.
The construction of that part of the award, which regulates the height to which the defendants shall have the right to main*447tain their dam, is free from all doubt. It does not adjudge thal the dam is to be kept up two inches above an iron bolt designated in the award, but to such a height as to raise the water t<. that point. Exceptions overruled.