delivered the following separate opinion, com curring with the rest of the court in the affirmance of the judgment:
I am of opinion that the judgment below should be affirmed, because, if all the matters stated in the prayer be taken as true, and the parol license be found by the jury, as prayed by the appellants, it was not sufficient to defeat the action. The damage complained of is for overflowing the plaintiff’s land by the improper height of the defendants’ dam. This they justify under a license from the former, and present owners of the land. I think that the right to overflow another’s land by a mill-dam, is an interest in land which cannot pass by parol. This was decided in Hays vs. Richardson, 1 Gill & Johns., 366, recognized in Addison vs. Hack, 2 Gill, 222. See, also, 11 Mass., 537, Cook vs. Stearns.