also dissented. He understood the plaintiffs’ claim as set up in their declaration to imply a denial of the defendant’s right to interpose any obstacle to the natural flow of the water into the plaintiffs’ race-way and to their mill, while they asserted in themselves the right to enjoy the use of the' water thus flowing in its natural course without hindrance, and to enjoy this use without any act or effort of their own to obtain the water; and yet, by the evidence objected to, the defendant’s right by means of his dam and gates to hinder and interrupt the natural flowing of the water, subject only to the plaintiffs’ right, under certain specified circumstances, to open those gates, was conceded ; the allegation thus being of a right to the enjoyment of the water flowing onward as it would flow if unobstructed, and the evidence being of a right to remove an obstacle lawfully interposed by the defendant on his own land, and make it flow. He thought therefore that the right proved was not a minor right of the same kind as, and included in, the right set up in the declaration as the ground of recovery, but one of an entirely different character, and therefore that the evidence ought to have been excluded.
New trial not advised.