In the two suits, the records of which were read in evidence, the plaintiffs were under no obligation to prove their title to the extent alledged, in order to entitle them to the verdict which they recovered. It was suffleient for them to prove so much of it, as would enable them to sustain their action, had no more been alleged.
Thus a person, who has the lawful possession of lands, may maintain an action for trespass committed upon them, and in his declaration need not set out more than his possessory title. But if he goes further, and alledges that he was well seized and possessed of those lands, as a good indefeasible estate in fee simple, and on the trial fails to establish such a title, still he may recover upon proof of a lawful possession during the period in which the injury complained of was committed. And if the case were tried upon the general issue, the record of it, in a subsequent case between the same parties, would prove nothing more than the plaintiff was bound to prove to entitle him to the verdict which he obtained.
So in the case of Buddington v. Bradley, it was sufficient for the plaintiffs, on the trial of their case, to prove a lawful possession of their mill and water privileges, during the time when the injury complained of was committed, but it was not necessary for them to prove that they and those under whom they claimed, had had such possession for a period of thirty-eight years previous thereto, and therefore the record does not establish the plaintiffs’ title during such anterior period, nor indeed any fact which it was not necessary for the plaintiffs to have proved, in order to entitle them to their verdict.
The court below was therefore right in saying to the jury *330that those records did not prove a title in the plaintiffs to the extent they claimed.
It was further insisted by the plaintiffs that they had gained a title as against the defendant, by the use of their mill and their water privilege for a period of more than fifteen years. It is difficult to see upon what ground this claim can be maintained, so long as the plaintiffs, in the use of their mill and water privilege, did not invade any rights of the defendant.
If indeed the plaintiffs, by means of their dam, had thrown the water back upon the defendant’s land, and had continued to do so for a period of more than fifteen years, without obirction on his part, the law would presume a grant to the plaintiffs of the right to flow the defendant’s land, because it is not to be supposed that he would have suffered such a continued injury to his land without objection, unless the plaintiffs had acquired the right.
But if the plaintiffs have done nothing more than merely to use their own property, and in such a manner as to do the defendant no injury, and give him no right to interfere with their use of their property, it is difficult to see how, by such an use, they can acquire a title as against the defendant.
What would be the effect of a title acquired by prescription, strictly so called, that is by an user extending so far back, as, in the language of the books, “ the memory of man runneth not to the contrary,” we need not enquire, because no such title was claimed in the court below.
Indeed the charge of the court upon the claim of the plaintiffs, as it was made, was in their favor, and therefore they have in this part of the case no cause for complaint, and the question need not further be considered.
It is finally claimed that the charge given to the jury was wrong, inasmuch as they were told that the defendant as riparian proprietor, had a right to detain the water for his reasonable use, for mechanical purposes, by means of hydraulic works, erected upon his own land, and that the question of reasonable use was one for the jury.
It is said this gives no definite rule, by which the rights of *331the parties may be determined, but the question is left to the varying opinions of jurors. The same objection might be urged in other cases where questions respecting reasonable care, reasonable diligence, and reasonable notice, arise, and are left to the jury.
But in our opinion the case was properly submitted. The plaintiffs, as lower riparian proprietors, were not entitled to the exclusive control of the whole stream. They have no right to say to the proprietors above, you shall not have the use of the waters of the stream, while passing over your lands, if you in an} manner obstruct the natural flow of the stream. The latter have rights as well as the former, and are equally entitled to the privilege of erecting mills and hydraulic works upon their own lands, and using the waters of the stream for operating them to a reasonable extent.
We do not advise a new trial.
In this opinion, the other judges, Storrs and Hinman, concurred.
New trial not to be granted.