The opinion of the court was delivered by
Pierpoint, Oh. J.The rights of the parties to this suit to the use of water, and the amount thereof that each might draw for the use of their respective mills and machinery, were settled when this case was before this court at a former time, as reported in 44 Yt. 416. The case now comes up from a trial subsequently had in the county court, where the questions now involved arose upon the plaintiffs’ claim for damages that they had sustained in consequence of the violation,by the defendants of their rights as so. established, and such questions are based upon the requests made by the defendants, that the court would charge as requested, which the defendants claim the court did not do, and the charge as made upon those requests, to each of which the defendants excepted.
The defendants requested the court to rule and charge, that if the jury should find that the paper-mill would not have been injured in its motion if the plaintiffs had not raised their wheel from the former level, then -they could not recover for such injury, and that upon the evidence, the plaintiffs, by the employment of their pitch-back wheel and the taking of the water within one foot of the top of the dam, had destroyed the gauge" and measure of their restrictive right, as against the grist-mill privilege, and could not recover by proof, simply, that the 'use of water by the defendants did injure the paper-mill in its motion from noon to midnight.
The court charged the jury, that the plaintiffs were not entitled to recover for anything done at any time when the pond was kept full of water; that in low water, that is, when the water of the pond was not running over the dam, the plaintiffs had a right to all the water of the stream, except what belonged to the gristmill right; that the grist-mill right was a right to draw as much water as was necessary to operate the grist-mill as it was constructed and accustomed to be used July 30, 1804, as the water was then taken from the dam to run the wheels and runs of *541stones then in use, from 12 o’clock at night to noon each day, in a continuous flow, and during the remainder of each day, what would be left of the same right, after yielding to the plaintiffs for the use of the paper-mill, as much water as was necessary to operate the paper-mill as that was constructed and accustomed to be used July 30, 1804, as the water was then taken from the dam to run the wheels then in use for that mill, in a continuous flow, in any reasonable manner that would not be worse for the defendants than to take and use the water as it was then taken and used ; that if the plaintiff lost anything by using a wheel that was not adapted to the power that he was entitled to, the defendants were not liable for that loss. That the court in this, correctly defined the rights of the parties as established by this court upon the former trial, is not denied. That they were properly applied to the evidence, and explained to the jury by the court, so that no injury would be likely to result from their misapplication by the jury, the case states; and we think there was a substantial compliance by the county court with all the requests of the defendants that they were entitled to have granted. That part of the defendants’ request that is based upon the fact that the plaintiffs had changed their wheels from what they were in 1804, thereby destroying the gauge and measure of their right, we think the party was not entitled to. To hold otherwise, would be, in effect, to restrict the plaintiffs, not only to the quantity of water used in 1804, but to the same manner of using it. The plaintiffs have the right to change their wheels and the manner of using the water, provided they use no more. If they .change to their own prejudice, the defendants are not responsible for it, and the court so told the jury. If the change destroys the ready and easy means of determining the quantity of water used in 1804, the defendants do not thereby lose their right, but the parties must establish their rights by such evidence as can now be had ; and they must stand upon the same ground that they would have stood upon, if the wheels and manner of taking the water had been destroyed by time or floods. We think there was no error in the charge or the omission to charge in this respect.
• -But it is insisted on the part of the defendants, that the court *542erred in submitting the question to the jury, as to whether Reed, in his use of the water while he held a lease of the defendants’ right, was acting under the authority of the defendants in exceeding the rights which the defendants had. The defendants claim that there was no evidence tending to show that they authorized Reed to use the water as he did. We think the facts and circumstances detailed in the bill of exceptions, had a tendency to show that the defendants authorized Reed to do what he did do ; whether-the fevidence was sufficient or not, was for the jury. The circumstances under which the business was done between the defendants and Reed ; the fact that the defendants' were there upon the ground, knew the manner in which Reed was using the water, making no objection or- giving any intimation to Reed that he was using too much water, using the water in connection with Reed to a large extent and under the. same right, and all the circumstances taken together, — were sufficient to warrant the court in submitting the question to the jury.
Judgment affirmed.