The former action by Ira Carpenter against Mary E. He well was for obstructing the stream, and thereby causing the water to flow back upon and injure his land. Her answer to that action put in issue his allegations, and also set up a license from his grantor. All that was necessary to maintain that action was that by means of the obstruction of the brook she had unlawfully flowed his land. The pleadings in that action do not show that her right to maintain the dam at all was iu *417issue, and the jury in the present action have found that it was not. It necessarily follows that the former judgment was not conclusive upon that question, and that the ruling of the court below was correct. McDowell v. Langdon, 3 Gray, 513. Perkins v. Parker, 10 Allen, 22. Burlen v. Shannon, 99 Mass. 200.
Exceptions overruled.