By the Court,
PAINE, J.This suit was brought, obviously, . as a common law action, for tbe flowing of tbe plaintiff’s land by the ei’ection of a mill dam. Tbe judgment demanded was for damages, and a perpetual injunction against maintaining tbe dam. While tbe suit was pending, and after an answer bad been put in by tbe defendant, setting up tbe mill dam law by way of defense, tbe decision of this court was announced, bolding tbe mill dam law constitutional. Tbe plaintiff then claimed that bis complaint was sufficient as a proceeding under that law to recover bis compensation, and asked leave to amend by striking out bis prayer for an injunction, wbicb tbe court refused.
Tbe only question here presented is, whether be should have been allowed to go on with Ms action as a proceeding under tbe statute to recover compensation for tbe taking of bis land. It may be that tbe facts averred in tbe complaint would be sufficient in a proceeding under tbe statute, but it is obvious that they were averred for an entirely different purpose. Tbe theory of tbe common law action was, that tbe land bad been wrongfully flowed, and that the plaintiff was entitled to damages therefor, and to prevent a continua ■ tion of tbe trespass, tbe equitable and legal relief being sought in one suit under tbe Code. Tbe theory of tbe statutory proceeding is, that tbe land is lawfully taken for public use, and that tbe owner is entitled to bis compensation. Tbe one proceeding is different in its entire scope and object from tbe other, and they are founded upon entirely different rights. This being so, we do not think tbe party should be allowed to change tbe one into tbe other. He should stand or fall with tbe right wbicb be made tbe foundation of bis suit Suppose a party should bring a suit to set aside a contract on tbe ground of fraud, and tbe defendant should set up a complete defense to the charge of fraud. If tbe complaint happened to contain sufficient facts to show a liability on the contract by tbe defendant, ought tbe plaintiff to be allowed to abandon tbe entire object of bis suit, and take a judgment such as be might be entitled to under tbe contract ? We think not. For that might have been a liability that the defendant never would have contested. And the same is *381true here. If tbe plaintiff desires to proceed tinder tbe statute, be should commence for that purpose.
Tbe judgment must be affirmed, with costs.