In respect to the admissibility of the usage and deed I must dissent.
Upon streams which do not at all times, in their ordinary, natural and continuous flow, furnish a sufficient supply of water to carry a mill, a dam and pond are essential for the purpose of accumulating water during the night for use during the day. The necessary head and fall may be obtained by a dam, or by a canal leading to a descent; but usually, on streams of moderate and ordinary capacity, the dam and pond are -necessary for both purposes. An early proprietor of the premises of both parties, built both the grist-mill and saw-mill, one above the other on the brook, and a single dam and pond for both. That the ordinary flow of water in *489the brook was Mot sufficient for operating the grist-mill, and that the pond was relied on for both, is shown by the usage sought to be proved. That usage obviously originated in the necessity of using the accumulated water of the pond to operate the grist-mill, when the saw-mill was not running. If the capacity of the stream had been such that a sufficient supply of water to operate either or both mills, flowed constantly at all times in the stream, it would have kept the pond full, and flowed over the dam when the saw-mill gates were shut, and furnished a sufficient supply, at all times, to the grist-mill, and the usage could have had no existence. It is manifest therefore that the owners .of the grist-mill relied upon the accumulation of water in the pond during the night, to furnish a supply to that mill during the day ; and that they drew from the pond such accumulated water, and in greater quantity than the natural flow of the stream during the day, by opening the gate for that purpose when the gate was not opened to operate the saw-mill; and that practice or usage was confirmed as a right, and extended to the substitute factory, by the deed.
Now it was that special right to “ take and draw ” the water from the pond, even when there was a natural though insufficient flow over the dam and in the plantiffs’ canal—that easement in the accumulated water of the pond—that right to an increased, unusual and regulated flow, to be exercised by entering upon the defendant’s land and opening his gate—which the plaintiffs offered to prove by the usage and the deed ; and the question is, whether the plaintiffs could prove that special right under the averments of the declaration.
Those averments are doubtless adapted to any proof of an unlawful and unauthorized interruption of the natural flow of the stream. But the plaintiffs did not claim to prove any such unlawful interruption. They did not claim, and -the usage and deed did not tend to prove, that the accumulation of the water in the pond of the defendant, until the natural flow of the stream continued over the dam, was not a reasonable and lawful act on the part of the defendant; nor did the usage and deed tend to prove that he did any thing more by way of interrupting the natural flow of the water in the stream, *490Indeed it would have been inconsistent with the usage, a violation of the right confirmed by the deed, to have left the saw-mill gate open at all times, and during the night, and prevented any accumulation of the water during that time for use during the day. The plaintiffs’ right was commensurate with the usage, and required the detention and accumulation of the water during the night so that they might draw it off in the day time in greater quantity than was afforded by the natural flow of the stream. The plaintiffs therefore offered the usage and deed to prove an easement in a pond of water lawfully accumulated and detained from its natural flow, for the reasonable operation of their mill; not the unlawful detention and accumulation alleged in the declaration ; and the injury complained of on the trial, and which they sought to prove, was an interruption in their right to take the benefit of that lawful accumulation by virtue of the usage and deed, and because such enjoyment was necessary to the accustomed operation of their factory.
The case differs therefore essentially from Twiss v. Baldwin. In that case the injury proved consisted in an unreasonable, and therefore unlawful, detention of the water in the defendant’s pond during the day time, and an unreasonable and unusual discharge of it during the night, whereby the plaintiff was interrupted in the enjoyment of such natural and lawful flow of the stream as he was entitled to have, and would have had if the water had been reasonably and lawfully used by the defendant. Here, there was no attempt to prove such unlawful detention for the unlawful purpose of letting it out again in the night when it could not be used, and thus deprive the plaintiff of the use of it, or for any unlawful purpose ; but to prove a right to have such accumulation made, and an easement in the use of it when made, for the benefit of the grist-mill as well as saw-mill—a right to “ take and draw ” the water so lawfully accumulated and detained through the gate in a greater quantity than the natural flow of the water in the stream for operating and working their factory, and an interruption and injury to that special right not alleged in the declaration,
*491If the defendant should keep open his gates or break open his dam, and permit the plaintiffs to enjoy the right to the unobstructed natural flow of the water, which and which alone they set up in their declaration, it would destroy the special right to an increased, regulated and artificial flow effected by the dam and gates, which was evidenced by the usage and deed, and would render the plaintiffs’ factory comparatively worthless.
Inasmuch therefore as I am of opinion that the evidence offered did not tend to prove the injury alleged in the declaration, and the plaintiffs have been permitted to prove and recover for a different injury, I think a new trial should be granted.