The opinion of the court was delivered by
Tyler, J.The plaintiff, in the second count of its declaration, upon which only it relies, alleges that the defendant was. guilty of a wrongful act in maintaining certain timbers upon the lower dam, whereby the water of the stream was raised about sixteen inches and caused to flow back upon the waterwheel of the plaintiff at its mill so as to prevent the working of the same in its business of sawing marble. The defendant claimed *163that he had a right permanently to maintain the dam at the height to which the timbers raised it; that this right was a servitude impressed upon the property by the Hydeville Company when it was the owner of both the water privileges upon the stream, and that the defendant derived the right from that company by means of the conveyances mentioned in the exceptions.
It was conceded by the plaintiff that while the Hydeville Company was the owner of all this property it placed a flash-board on the top of the waterway, but the plaintiff’s evidence tended to show that this was a mere temporary obstruction to the flow of the water, and was kept upon the waterway only in times of low water, while the defendant’s evidence tended to show that it became a part of the dam itself, a permanent obstruction at all times to the flow of the stream. Therefore, the question for the jury was whether this flash-board thus placed on the dam by the Hydeville Company was a removable and temporary appliance, used for ponding the water when the stream was low, or a permanent addition to the dam and passed to the defendant as an apparent and continuous servitude.
The jury found by their general verdict of guilty that the flash-board was designed and used by the Hydeville Company as a temporary and not a permanent structure. Their special finding, “ that the defendant is entitled to maintain upon the upper part of said apron a removable plank or flash-board not to exceed three inches in thickness or sixteen inches in height and of sufficient length to extend across said apron,” is consistent with their general verdict. Both the first and second clauses of the special finding indicate that it was the judgment of the jury that the defendant was only entitled to maintain a removable plank upon the waterway. Their order, contained in the first clause, that he should remove the timbers that he had placed upon the dam within ten days from date, is, of course, a nullity.
To avoid any question that might hereafter arise as to the effect of the judgment.entered upon the verdict as rendered, the judgment is pro forma reversed and judgment directed for the plaintiff upon the general verdict of guilty.