It is admitted by the parties, that they are respectively owners of lands and mills situated upon the opposite sides of the Pachaug river, and that these mills are operated by the waters of that river, raised by a dam across the same.
The plaintiff has alleged, that he is entitled to the free course of those waters, and the use of them for his mill, by means of the dam, free and undisturbed. The defendant says, that there is a variance between the allegations and the proof of title, as shown by the agreement, because whenever there is a scarcity of water in the river, the plaintiff is entitled to the use of it, only one-fourth part of the time.
Is this variance fatal, and such as precludes a recovery upon the second count in the declaration ? What is the grievance for which the plaintiff sues 1 He complains of'no want of water, nor of any act by which he has been deprived of the use of it. But he says, the defendant has unlawfully raised the dam, on his side of the river, four feet and more, and thereby, especially in times of high water, has inundated his wheel and mill with water. This is the injury of which he complains.
Now, the rights of the parties as to the use of the waters of the river, are not varied or affected, by that agreement, except when the waters are insufficient for the use of all the mills. At all other times, their rights remain the same as they would be, had the agreement never been made. Indeed, the great object of that agreement seems to be, to prescribe the manner in which the dam should be repaired, and the waters used, when they were insufficient for the use of all their works.
But there is nothing in the case, showing that during the *499whole period, in which the plaintiff complains of having been injured, there was not an adequate supply of water for the use-of all parties. Indeed, the very complaint of the plaintiff, would seem to imply, that there was no want of water.
If so, then the allegations of the plaintiff that he was, during that period, entitled to the free course of the waters of the stream, and the use of them, undisturbed by the defendant, are strictly and literally true ; and there is no variance.
But further, admitting there were days, during that period, when the plaintiff, by virtue of that agreement, had no right to use the waters of the stream, it does not follow, that he would not be entitled to recover for injuries received at those times when he had a right to use them.
This is an action founded on tort, and if the plaintiff fails to prove an injury as great as he has stated, he may, nevertheless, recover to the extent proved. The rule upon this subject is very well illustrated, in the case of Ricketts v. Salwey, 2 B. & Ald. 360. That was an action for the disturbance of the plaintiff’s right of common. The declaration stated, that he was possessed of a messuage and one hundred and fifty acres of land, by reason whereof he ought to have common of pasture, &c. The evidence was, that he was entitled to the land only, and to the right of common in respect to that. Abbott^ C. J. “ The general rule in cases of tort, is, that it is sufficient, if part only of the allegation stated in the declaration be proved, provided, that what is proved affords a ground for maintaining the action, supposing it to have been correctly stated as proved. There is one exception, however, to this rule, which is, where the allegation contains matter of description. There, if the proof given be different from the statement, the variance will be fatal.” And Holroyd, J. said, “ It is quite enough in cases of tort, if you prove the same ground of action laid in the declaration, though not to the extent there stated. And in such cases, the court will give judgment as if the declaration had been originally confined to the ground of action proved.”
So in the present case, although the plaintiff may have failed to prove an injury, by the defendant, or the existence of his right, during every day of the period mentioned; yet if he prove that right for a part of the time, and an injury to that right, in the manner alleged, he may nevertheless recover to *500the extent of the injury proved. The ground of action is not J . . c i changed, and there is no variance m any matter ot description. All that can be said is, that the right of the plaintiff proved was not as extensive.as the one stated. The variance may affect the damages, but not the plaintiff’s right to recover.
With these views we deem it unnecessary to consider the other matters, urged by the plaintiff’s counsel in their arguments.
The instruction asked for was properly refused; and no new trial should be granted.
In this opinion the other Judges concurred.
New trial not to be granted.